[Execution Counterpart]
************************************************************
SINCLAIR BROADCAST GROUP, INC.
and
SUBSIDIARY GUARANTORS
-----------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 31, 1996
------------------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
------------------------------
************************************************************
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience only.
Page
Section 1. Definitions and Accounting Matters............................... 3
1.01 Certain Defined Terms......................................... 3
1.02 Accounting Terms and Determinations...........................42
1.03 Classes and Types of Loans....................................44
1.04 References to Date............................................44
Section 2. Commitments......................................................44
2.01 Loans.........................................................44
2.02 Borrowings....................................................46
2.03 Changes of Commitments........................................46
2.04 Commitment Fees...............................................48
2.05 Lending Offices...............................................49
2.06 Several Obligations; Remedies Independent.....................49
2.07 Notes.........................................................49
2.08 Optional Prepayments and Conversions or
Continuations of Loans............................51
2.09 Mandatory Prepayments and Reductions of
Commitments.......................................52
2.10 Issuance of Letters of Credit.................................56
Section 3. Payments of Principal and Interest...............................61
3.01 Repayment of Loans............................................61
3.02 Interest......................................................64
Section 4. Payments; Pro Rata Treatment;
Computations;Etc..................................65
4.01 Payments......................................................65
4.02 Pro Rata Treatment............................................66
4.03 Computations..................................................67
4.04 Minimum Amounts, Etc..........................................67
4.05 Certain Notices...............................................67
4.06 Non-Receipt of Funds by the Agent.............................68
4.07 Sharing of Payments, Etc......................................69
Section 5. Yield Protection, Etc............................................71
5.01 Additional Costs..............................................71
5.02 Limitation on Types of Loans..................................74
5.03 Illegality....................................................74
5.04 Treatment of Affected Loans...................................75
5.05 Compensation..................................................75
5.06 Additional Costs in Respect of
Letters of Credit.................................76
5.07 U.S. Taxes....................................................77
5.08 Replacement of Lenders........................................79
(i)
Page
Section 6. Guarantee........................................................80
6.01 Guarantee.....................................................80
6.02 Obligations Unconditional.....................................80
6.03 Reinstatement.................................................81
6.04 Subrogation...................................................82
6.05 Remedies......................................................82
6.06 Continuing Guarantee..........................................82
6.07 Rights of Contribution........................................82
6.08 Limitation on Guarantee Obligations...........................83
Section 7. Conditions Precedent.............................................84
7.01 Effectiveness of this Agreement...............................84
7.02 Initial and Subsequent Loans..................................94
Section 8. Representations and Warranties...................................95
8.01 Corporate Existence...........................................95
8.02 Financial Condition...........................................95
8.03 Litigation....................................................96
8.04 No Breach.....................................................96
8.05 Action........................................................96
8.06 Approvals.....................................................97
8.07 Use of Loans..................................................97
8.08 ERISA.........................................................97
8.09 Taxes.........................................................97
8.10 Investment Company Act........................................98
8.11 Public Utility Holding Company Act............................98
8.12 Indebtedness and Interest Rate Protection
Agreements........................................98
8.13 Hazardous Materials...........................................98
8.14 Subsidiaries, Etc............................................100
8.15 Broadcast Licenses...........................................101
8.16 Property.....................................................102
8.17 Ancillary Documents..........................................102
8.18 Film Obligations.............................................103
8.19 Capitalization...............................................103
8.20 True and Complete Disclosure.................................103
8.21 Tax Identification Numbers...............................104
8.22 Program Services Agreements..............................104
8.23 Options..................................................104
8.24 Asset Use and Operating Agreements.......................104
Section 9. Covenants of the Obligors.......................................104
9.01 Financial Statements.........................................105
9.02 Litigation...................................................109
9.03 Existence, Etc...............................................109
9.04 Insurance....................................................110
9.05 Prohibition of Fundamental Changes...........................111
9.06 Limitation on Liens..........................................118
9.07 Indebtedness.................................................119
9.08 Investments..................................................121
9.09 Dividend Payments............................................122
(ii)
Page
9.10 Interest Coverage Ratio......................................123
9.11 Fixed Charges Ratio..........................................123
9.12 Capital Expenditures.........................................123
9.13 Senior Indebtedness Ratio....................................123
9.14 Total Indebtedness Ratio.....................................124
9.15 Film Cash Payments and
Sports Rights Payments...........................125
9.16 Corporate Expense............................................126
9.17 Interest Rate Protection Agreements..........................126
9.18 Subordinated Indebtedness....................................127
9.19 Lines of Business............................................127
9.20 Transactions with Affiliates.................................128
9.21 Use of Proceeds..............................................128
9.22 Certain Obligations Respecting
Subsidiaries.....................................128
9.23 Additional Subsidiary Guarantors.............................129
9.24 Modifications of Certain Documents...........................129
9.25 License Subsidiaries.........................................130
9.26 Equity Issuance..............................................131
9.27 CRESAP.......................................................132
9.28 Real Property................................................133
9.29 Program Services Agreements..................................136
9.30 FCC Filings..................................................137
9.31 Exercise of River City Options...............................137
9.32 Limitation on Cure Rights....................................137
Section 10. Events of Default..............................................138
10.01 Events of Default; Remedies.................................138
10.02 Collateral Account..........................................143
Section 11. The Agent......................................................144
11.01 Appointment, Powers and Immunities..........................144
11.02 Reliance by Agent...........................................145
11.03 Defaults....................................................146
11.04 Rights as a Lender..........................................146
11.05 Indemnification.............................................147
11.06 Non-Reliance on Agent and
Other Lenders....................................147
11.07 Failure to Act..............................................148
11.08 Resignation or Removal of Agent.............................148
11.09 Consents under Certain Documents............................148
11.10 Collateral Sub-Agents.......................................149
11.11 Managing Agents.............................................149
11.12 Conditions Precedent........................................149
Section 12. Miscellaneous..................................................150
12.01 Waiver......................................................150
12.02 Notices.....................................................150
12.03 Expenses, Etc...............................................150
12.04 Amendments, Etc.............................................152
12.05 Successors and Assigns......................................155
(iii)
Page
12.06 Assignments and Participations...............................155
12.07 Survival.....................................................158
12.08 Captions.....................................................158
12.09 Counterparts.................................................159
12.10 Governing Law; Submission
to Jurisdiction...................................159
12.11 Waiver of Jury Trial.........................................159
12.12 Treatment of Certain Information.............................159
12.13 Cure of Defaults by Agent or Lenders.........................159
Schedule I - Indebtedness and Interest Rate Protection
Agreements
Schedule II - Hazardous Materials
Schedule III - Subsidiaries and Investments
Schedule IV - Broadcast Licenses
Schedule V - Film Obligations
Schedule VI - Real Property
Schedule VII - Tax Identification Numbers
Schedule VIII - Program Services Agreements
Schedule IX - Option Agreements
Schedule X - Asset Use and Operating Agreements
Schedule XI - Revolving Credit Commitments
Schedule XII - Tranche A Term Loan Commitments
Schedule XIII - Tranche B Term Loan Commitments
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Tranche A Term Loan Note
Exhibit A-3 - Form of Tranche B Term Loan Note
Exhibit A-4 - Form of Tranche C Term Loan Note
Exhibit B - Form of Tranche C Term Loan Activation Notice
Exhibit C - Form of Security Agreement
Exhibit D - Form of Affiliate Guaranty and Security Agreement
Exhibit E - Form of GDC Security Agreement
Exhibit F - Form of Founders Subordination Agreement
Exhibit G - Form of Asset Use and Operating Agreement
Exhibit H - Form of Consent and Agreement
Exhibit I - Form of Assignment and Acceptance
(iv)
- 1 -
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May
31, 1996, between:
SINCLAIR BROADCAST GROUP, INC., a corporation duly organized
and validly existing under the laws of the State of Maryland (the
"Borrower");
each of the Persons (as defined in Section 1.01 hereof)
identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereof or which, pursuant to Section 9.23 hereof, shall become a
"Subsidiary Guarantor" hereunder (individually, a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors"; the Borrower
and the Subsidiary Guarantors being collectively referred to herein as
the "Obligors");
each of the Persons identified under the caption "LENDERS" on
the signature pages hereof or which, pursuant to Section 12.06(b)
hereof, shall become a "Lender" hereunder (individually, a "Lender"
and, collectively, the "Lenders"); and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Agent").
WHEREAS, the Borrower, certain of the Subsidiary Guarantors,
certain of the Lenders (the "Existing Lenders") and the Agent are party to an
Amended and Restated Credit Agreement dated as of May 24, 1994 (as heretofore
modified and supplemented and in effect on the date hereof immediately before
giving effect to the amendment and restatement contemplated hereby, the
"Existing Credit Agreement"). Pursuant to the Existing Credit Agreement, (a)
certain of the Existing Lenders committed to make Facility A Revolving Credit
Loans (as defined in the Existing Credit Agreement and referred to herein as
"Existing Facility A Revolving Credit Loans") and Term Loans (as defined in the
Existing Credit Agreement and referred to herein as "Existing Term Loans") to
the Borrower in an original aggregate principal amount not exceeding
$225,000,000 at any one time outstanding (the "Existing Facility A
Commitments"), with a portion of such commitments made available for the
issuance of letters of credit in an aggregate face amount not exceeding
$15,000,000 at any one time outstanding, (b) by operation of a Facility B
Activation Notice (as defined in the Existing Credit Agreement), one Existing
Lender committed to make Facility B Revolving Credit Loans (as defined in the
Existing Credit Agreement and referred
Credit Agreement
- 2 -
to herein as "Existing Facility B Revolving Credit Loans") to the Borrower in an
aggregate principal amount not exceeding $75,000,000 at any one time outstanding
(the "Existing Facility B Commitment") and (c) certain of the Existing Lenders
committed to make Facility C Loans (as defined in the Existing Credit Agreement
and referred to herein as "Existing Facility C Loans") to the Borrower in an
original aggregate principal amount not exceeding $125,000,000 (the "Existing
Facility C Commitments");
WHEREAS, on the date hereof (a) Existing Facility A
Commitments have been terminated and no Existing Facility A Revolving Credit
Loans, Existing Term Loans or Letters of Credit (and no reimbursement
obligations) are outstanding under the Existing Credit Agreement, (b) an
Existing Facility B Commitment in the amount of $75,000,000 remains outstanding
under the Existing Credit Agreement and Existing Facility B Revolving Credit
Loans in an aggregate principal amount equal to $36,000,000 are outstanding
under the Existing Credit Agreement and (c) the Existing Facility C Commitments
have been terminated and no Existing Facility C Loans are outstanding under the
Existing Credit Agreement; and
WHEREAS, the Borrower has requested that the Existing Lenders
(which include all of the Persons that on the date hereof are Lenders under, and
as defined in, the Existing Credit Agreement) and the Agent agree to amend and
restate the Existing Credit Agreement, and the Existing Lenders and the Agent
are willing to amend and restate the Existing Credit Agreement, in order to,
among other things, (a) reinstate the Existing Facility A Commitments and set
the initial aggregate amount thereof to be $250,000,000, change the name thereof
to "Revolving Credit Commitments" and set the amount thereof available for
Letters of Credit to be $50,000,000, (b) increase the aggregate principal amount
of the Existing Facility B Revolving Credit Loans to $550,000,000, convert the
Existing Facility B Revolving Credit Loans into term loans and change the name
thereof to "Tranche A Term Loans" and (c) provide for (i) Tranche B Term Loans
(as defined herein) to be made by certain Lenders to the Borrower in an
aggregate principal amount not exceeding $200,000,000 and (ii) if agreed to by
the Borrower and one or more Lenders after the date hereof, Tranche C Term Loans
(as defined herein) to be made by certain Lenders to the Borrower in an
aggregate principal amount not exceeding $200,000,000;
NOW, THEREFORE, the parties hereto hereby agree that the
Existing Credit Agreement shall be amended and restated as of the date hereof
(but subject to Section 7.01 hereof) to read in its entirety as follows:
Credit Agreement
- 3 -
Section 1. Definitions and Accounting Matters.
----------------------------------
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Acquisitions" shall mean the River City Non-License
Acquisition, the River City License Acquisitions, the Approved Acquisitions and
the Other Acquisitions.
"Additional Corporate Expense" shall have the meaning assigned
to such term in Section 9.16 hereof.
"Additional Senior Subordinated Notes" shall have the meaning
assigned to such term in Section 9.07(c) hereof.
"Affiliate" shall mean any Person which directly or indirectly
controls, or is under common control with, or is controlled by, the Borrower
and, if such Person is an individual, any member of the immediate family
(including parents, spouse and children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event, any
Person which owns directly or indirectly 5% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, no individual shall be deemed to be an Affiliate solely by reason of
his or her being a director, officer or employee of the Borrower or any of its
Subsidiaries and the Borrower and its Subsidiaries shall not be deemed to be
Affiliates of each other.
"Affiliate Guarantee and Security Agreement" shall mean a
second amended and restated Guarantee and Security Agreement substantially in
the form of Exhibit D hereto between Cunningham, GDLP, KIG and the Agent, as the
same shall be modified and supplemented and in effect from time to time.
Credit Agreement
- 4 -
"Aggregate Consideration" shall mean, in connection with any
Acquisition, the aggregate consideration, in whatever form (including, without
limitation, cash payments, the principal amount of promissory notes and
Indebtedness assumed, the aggregate amounts payable to acquire, extend and
exercise any option, the aggregate amount payable under non-competition
agreements and management agreements, and the fair market value of other
Property delivered) paid, delivered or assumed by the Borrower and its
Subsidiaries for such Acquisition.
this "Agreement" shall mean this Second Amended and Restated
Credit Agreement, as modified and supplemented and in effect from time to time.
"Ancillary Documents" shall mean the River City Acquisition
Documents, the Asset Use and Operating Agreements, the Julian Smith Documents,
the Carolyn Smith Documents, the Program Services Agreements, the Senior
Subordinated Notes and the Senior Subordinated Note Indentures.
"Applicable Commitment Fee Rate" shall mean 1/2 of 1% per
annum; provided that if the Total Indebtedness Ratio as at the last day of any
fiscal quarter of the Borrower shall fall within any of the ranges set forth
below then, subject to the delivery to the Agent of a certificate of a senior
financial officer of the Borrower demonstrating such fact prior to the end of
the next succeeding fiscal quarter, the "Applicable Commitment Fee Rate" shall
be reduced to the rate set forth below opposite such range during the period
commencing on the Quarterly Date on or immediately following the date of receipt
of such certificate to but not including the next succeeding Quarterly Date
thereafter (except that notwithstanding the foregoing, the Applicable Commitment
Fee Rate shall not as a consequence of this proviso be so reduced for any period
during which an Event of Default shall have occurred and be continuing):
Range of
Total Applicable Commitment
Indebtedness Ratio Fee Rate (% p.a.)
------------------ -----------------
Greater than or
equal to 5.50 to 1 1/2 of 1%
less than 5.50 to 1
and greater than or
equal to 4.00 to 1 3/8 of 1%
Less than 4.00 to 1 1/4 of 1%
Credit Agreement
- 5 -
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or of an affiliate
of such Lender) designated for such Type of Loan on the signature pages hereof
or such other office of such Lender (or of an affiliate of such Lender) as such
Lender may from time to time specify to the Agent and the Borrower as the office
by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean: (a) with respect to Base Rate
Loans, (i) 1-1/4% per annum for Revolving Credit Loans and Tranche A Term Loans,
(ii) 1-3/4% per annum for Tranche B Term Loans and (iii) the rate per annum for
Tranche C Term Loans agreed to by the Borrower and the Tranche C Lenders in the
Tranche C Term Loan Activation Notice; and (b) with respect to Eurodollar Loans,
(i) 2-1/2% per annum for Revolving Credit Loans and Tranche A Term Loans, (ii)
2-3/4% per annum for Tranche B Term Loans and (iii) the rate per annum for
Tranche C Term Loans agreed to by the Borrower and the Tranche C Lenders in the
Tranche C Term Loan Activation Notice; provided that if the Total Indebtedness
Ratio as at the last day of any fiscal quarter of the Borrower shall fall within
any of the ranges set forth below then, subject to the delivery to the Agent of
a certificate of a senior financial officer of the Borrower demonstrating such
fact prior to the end of the next succeeding fiscal quarter, the "Applicable
Margin" for Revolving Credit Loans and Tranche A Term Loans shall be reduced to
the rate for the respective Type of Loan set forth below opposite such range
during the period commencing on the Quarterly Date on or immediately following
the date of receipt of such certificate to but not including the next succeeding
Quarterly Date thereafter (except that notwithstanding the foregoing, the
Applicable Margin for any such Loan shall not as a consequence of this proviso
be so reduced for any period during which an Event of Default shall have
occurred and be continuing):
Range of
Total Applicable Margin (% p.a.)
Indebtedness Ratio Base Rate Loans Eurodollar Loans
------------------ --------------- ----------------
Greater than or
equal to 6.00 to 1 1-1/4% 2-1/2%
less than 6.00 to 1
and greater than or
equal to 5.50 to 1 1% 2-1/4%
less than 5.50 to 1 and
greater than or equal
to 5.00 to 1 3/4% 2%
Credit Agreement
- 6 -
less than 5.00 to 1 and
greater than or equal
to 4.00 to 1 1/4% 1-1/2%
Less than 4.00 to 1 0% 1-1/4%
"Approved Acquisitions" shall mean (a) the acquisition of
assets and assumption of liabilities in accordance with the terms hereof by the
Borrower or any of its Subsidiaries pursuant to the exercise of the KSMO Option,
(b) the acquisition of assets and assumption of liabilities in accordance with
the terms hereof by the Borrower or any of its Subsidiaries pursuant to the
exercise of the WSTR Option, (c) the WYZZ Acquisition, (d) the consummation of
the acquisition of assets by the Borrower or any of its Subsidiaries pursuant to
the exercise of any or all of the WPTT Conversion Option, the Glencairn Options
and the WDBB Options, (e) the acquisition of stock or assets and assumption of
liabilities relating to WFBC-AM and WFBC-FM, Greenville, South Carolina and
WORD-AM, Spartanburg, South Carolina in accordance with the terms hereof by the
Borrower or any of its Subsidiaries pursuant to the exercise of either option
granted to the Borrower or such Subsidiary under the Option Agreement dated as
of July 7, 1995, as amended, by and among Keymarket of South Carolina, Inc.
("Keymarket S.C.") and the Borrower (as assignee of River City), (f) the
acquisition of assets and assumption of liabilities relating to WSPA-AM and
WSPA-FM, Spartanburg, South Carolina in accordance with the terms hereof by the
Borrower or any of its Subsidiaries pursuant to the exercise of the option
granted to the Borrower or such Subsidiary under the Option Agreement dated as
of August 30, 1994, as amended, by and among The Spartan Radiocasting Company,
Inc. and the Borrower (as assignee of River City, which, in turn, is assignee of
Keymarket S.C.), (g) the acquisition of assets (or of the capital stock (or
other equity ownership interest) of the Person that owns such assets) and
assumption of liabilities relating to WPMR-AM and WKRF-FM, Tobyhanna,
Pennsylvania in accordance with the terms hereof, (h) the acquisition of assets
and assumption of liabilities relating to WQEQ-FM, Freeland, Pennsylvania and
WXPX-AM, West Hazelton, Pennsylvania in accordance with the terms hereof by the
Borrower or any of its Subsidiaries pursuant to the exercise of the option
granted to the Borrower or such Subsidiary under the Option Agreement dated as
of September 13, 1995, as amended, by and among Friendship Communications, Inc.
and the Borrower (as assignee of River City), (i) the acquisition of assets (or
of the capital stock (or other equity ownership interest) of the Person that
owns such assets) and assumption of liabilities relating to WWWS(AM) and
WGR(AM), Buffalo, New York and (j) the acquisition of assets (or of the capital
stock (or other equity ownership interest) of the Person that owns such assets)
and assumption of
Credit Agreement
- 7 -
liabilities relating to WXWX-FM, Easley, South Carolina, and WXWZ-FM, Greer,
South Carolina.
"Asset Use and Operating Agreements" shall mean (a) the
agreements listed in Schedule X hereto and (b) with respect to each Owned
Station hereafter acquired by the Borrower, an Asset Use and Operating Agreement
entered into after the date hereof, as contemplated by Section 9.25 hereof,
between the Subsidiary of the Borrower that operates such Owned Station and a
License Subsidiary with respect to such Owned Station substantially in the form
of Exhibit G hereto, in each case as the same may be modified and supplemented
and in effect from time to time.
"Baker Employment Agreement" shall mean the Employment
Agreement dated as of April 10, 1996 between Barry Baker and the Borrower, as
the same may be modified and supplemented and in effect from time to time.
"Baker Stock Option Agreement" shall mean the Stock Option
Agreement dated as of April 10, 1996 between Barry Baker and the Borrower,
providing, among other things, for the right of Barry Baker to acquire 1,382,435
shares of the Borrower's Class A Common Stock on the terms and conditions set
forth therein, as the same may be modified and supplemented and in effect from
time to time.
"Base Rate" shall mean, for any day, the higher of (a) the
Federal Funds Rate for such day plus 1/2 of 1% per annum or (b) the Prime Rate
for such day. Each change in any interest rate provided for herein based upon
the Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans which bear interest at
rates based upon the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement,
the Notes, the Letter of Credit Documents, the Security Documents, each Consent
and Agreement and the Founders Subordination Agreement.
"Broadcast Licenses" shall mean (a) the licenses, permits,
authorizations or certificates to construct, own, operate or promote the
Stations granted by the FCC, and all extensions, additions and renewals thereto
or thereof, and (b) the licenses, permits, authorizations or certificates which
are necessary or desirable to construct, own, operate or promote the Stations
granted by administrative law courts or any state, county, city, town, village
or other local government authority, and all extensions, additions and renewals
thereto or thereof.
Credit Agreement
- 8 -
"Business Day" shall mean (a) any day on which commercial
banks are not authorized or required to close in New York City and (b) if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Borrower with respect to any such borrowing, payment,
prepayment, Conversion or Interest Period, which is also a day on which dealings
in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period,
expenditures (including the aggregate amount of Capital Lease Obligations
incurred during such period) made by the Borrower or any of its Consolidated
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP, but excluding any such
expenditures made as part of any Acquisition.
"Capital Lease Obligations" shall mean, for any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal Property to the
extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board) and, for purposes of this Agreement, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance with GAAP (including
such Statement No. 13).
"Capital Stock" shall mean, as to any Person, any and all
shares, interests, warrants, participations or other equivalents (however
designated) of corporate stock of such Person.
"Carolyn Smith Documents" shall mean the Term Note dated
September 30, 1990 of the Borrower payable to Carolyn C. Smith in the original
face amount of $6,700,000 and all agreements, documents or other instruments
providing for any Guarantee of all or any portion of such Term Note by any
Obligor, in each case as modified and supplemented and in effect from time to
time.
"Casualty Event" shall mean, with respect to any Property of
any Person, any loss of or damage to, or any condemnation or other taking of,
such Property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.
Credit Agreement
- 9 -
"Chase" shall mean The Chase Manhattan Bank (National
Association) and its successors.
"Cincinnati TV 64" shall mean Cincinnati TV 64 Limited
Partnership, a Delaware limited partnership.
"Class" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Account" shall have the meaning assigned to such
term in Section 10.02 hereof.
"Columbus Option Agreement" shall mean the Columbus Option
Agreement dated as of May 31, 1996 by and among the River City Sellers, as
Sellers, and the Borrower, as Option Holder, as the same shall be modified and
supplemented and in effect from time to time.
"Commitments" shall mean the Revolving Credit Commitments, the
Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments and the
Tranche C Term Loan Commitments.
"Consent and Agreement" shall mean a Consent and Agreement
substantially in the form of Exhibit H hereto.
"Consolidated Subsidiary" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Contract Station" shall mean (a) each television or radio
station listed in Part B of Schedule IV hereto and (b) each television or radio
station that is the subject of an acquisition referred to in clause (b) of the
definition of "Other Acquisition" in this Section 1.01 consummated by the
Borrower or any of its Subsidiaries on or after the date hereof, in each case
referred to in the foregoing clauses (a) and (b) until such time, if any, as
such television or radio station becomes an Owned Station.
Credit Agreement
- 10 -
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.08 or 5.04 hereof of Loans of one Type into
Loans of the other Type, which may be accompanied by the transfer by a Lender
(at its sole discretion) of a Loan from one Applicable Lending Office to
another.
"Converted Senior Subordinated Notes" shall have the meaning
assigned to such term in Section 9.07(h) hereof.
"Corporate Expense" shall mean, for any period, all general
and administrative expenses of the Borrower for such period. In the event that
any general or administrative expense of the type heretofore borne by the
Borrower is hereafter borne by any Subsidiary of the Borrower, such general or
administrative expense borne by such Subsidiary shall be deemed to be "Corporate
Expense" for the purposes hereof.
"Corporate Employee Stock Option Agreements" shall mean the
respective Stock Option Agreements dated as of April 10, 1996 between the
Borrower and the respective River City Corporate Employees, providing, among
other things, for the right of the River City Corporate Employees to acquire, in
the aggregate, not more than 691,218 shares of the Borrower's Class A Common
Stock on the terms and conditions set forth therein, in each case as the same
may be modified and supplemented and in effect from time to time.
"Credit Exposure" of a Lender shall mean the aggregate
outstanding principal amount of the Loans held by such Lender, the aggregate
unutilized amounts of the outstanding Commitment(s) of such Lender and the
aggregate amount of Letter of Credit Liabilities of such Lender.
"Credit Parties" shall mean the Obligors, Cunningham, KIG,
GDLP and GDC.
"CRESAP" shall mean CRESAP Enterprises, Inc, a Maryland
corporation.
"CRESAP Investment" shall mean the Investment permitted by the
proviso to Section 9.27(e) hereof.
"Cunningham" shall mean Cunningham Communications, Inc., a
Maryland corporation.
"Debt Service" shall mean, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all payments
of principal of Indebtedness (including, without limitation, the principal
component of any
Credit Agreement
- 11 -
payments in respect of Capital Lease Obligations) scheduled to be made during
such period plus (b) all Interest Expense for such period plus (c) fees and
other expenses payable in connection with this Agreement for such period
(excluding such fees and expenses constituting transaction costs payable on the
Restatement Effective Date, but including agency fees).
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Designated Employees Stock Option Plan" shall mean the
Incentive Stock Option Plan for Designated Participants providing for the right
of certain employees of the Borrower and its Subsidiaries to acquire, in the
aggregate, not more than 68,000 shares of the Borrower's Class A Common Stock.
"Disposition" shall mean any sale, assignment, transfer or
other disposition of any Property (whether now owned or hereafter acquired) by
the Borrower or any of its Subsidiaries to any Person excluding any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Borrower or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Borrower or any of its Subsidiaries), but
excluding dividends payable solely in shares of capital stock of the Borrower.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean, for any period, the sum, for the Borrower
and its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following for such period: (a) net
operating income for such period plus (b) taxes to the extent deducted in
determining net operating income for such period plus (c) depreciation and
amortization (including film amortization) for such period plus (d) Interest
Expense for such period to the extent deducted in determining net operating
income for such period plus (e) all other non-cash charges to the extent
deducted in determining net operating income for such period minus (f) Film Cash
Payments
Credit Agreement
- 12 -
made or scheduled to be made during such period (but, to the extent EBITDA for
such period is determined on a pro forma basis after giving effect to the River
City Non-License Acquisition, excluding Film Cash Payments scheduled to be made
but not made by River City during the portion of such period occurring prior to
the Restatement Effective Date) minus (g) Corporate Expense to the extent not
deducted in determining net operating income for such period (excluding up to
$1,028,000 of bonuses to the extent paid to the Smith Brothers in respect of
services rendered to the Borrower and its Subsidiaries in 1995) plus (h) the
Adjustment Amount (as defined below) for such period minus (i) non-cash revenues
to the extent included in net operating income for such period plus (j) the
aggregate amount of Additional Corporate Expense and Dividend Payments made by
the Borrower and its Subsidiaries as permitted by Sections 9.09(a) and 9.16
hereof to the extent deducted in determining net operating income for such
period or included in determining Corporate Expense pursuant to the preceding
clause (g) for such period plus (k) Permitted Termination Payments (as defined
in Section 9.29 hereof) to the extent deducted in determining net operating
income for such period or included in determining Corporate Expense pursuant to
the preceding clause (g) for such period plus (l) any WSYX Extension Payment
made by the Borrower or any of its Subsidiaries during such period to the extent
deducted in determining net operating income for such period. For purposes of
this definition, the "Adjustment Amount" for any period shall mean: (a) if such
period ends before September 30, 1996, $7,780,000, (b) if such period ends on or
after September 30, 1996, but before December 31, 1996, $6,000,000, (c) if such
period ends on or after December 31, 1996, but before June 30, 1997, $4,000,000
and (d) if such period ends on or after June 30, 1997, $0. In the event that any
Disposition occurs during any period for which EBITDA is to be calculated, such
EBITDA shall be calculated as if such Disposition had occurred on the first day
of such period using such reasonable estimates and pro forma adjustments
effected in accordance with generally accepted accounting principles as the
Borrower shall propose and the Agent and at least one Managing Agent shall
approve.
"EBITDA Percentage" shall mean, as of the date of the
consummation of any sale or exchange of assets (or capital stock (or other
equity ownership interest)) contemplated by Section 9.05(d)(iv) hereof, the
ratio, expressed as a percentage, obtained by dividing (a) the portion of EBITDA
attributable to such assets for the twelve-month period ending on, or most
recently ended prior to such date by (b) EBITDA for such period.
"Environmental Affiliate" shall mean, as to any Person (the
"successor"), any other Person whose liability (contingent or otherwise) for an
Environmental Claim the successor may have
Credit Agreement
- 13 -
retained, assumed or otherwise become or remained liable for (contingently or
otherwise), whether by contract, operation of law or otherwise; provided that
each Subsidiary of the successor, and each former Subsidiary or division of the
successor transferred to another Person, shall in any event be an "Environmental
Affiliate" of the successor.
"Environmental Claim" shall mean, with respect to any Person,
any notice, claim, demand or other communication (whether written or oral) by
any other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response costs, damages to natural resources
or other Property, personal injuries, fines or penalties arising out of, based
on or resulting from (a) the presence, or Release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or (b)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Laws" shall mean any and all Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, Releases or threatened Releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by the
Borrower or any of its Subsidiaries after the Restatement Effective Date of (i)
any capital stock, (ii) any warrants or options exercisable in respect of
capital stock (other than any warrants or options relating to capital stock of
the Borrower issued to directors, officers or employees of the Borrower or any
of its Subsidiaries pursuant to employee benefit plans established in the
ordinary course of business and any capital stock of the Borrower issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Borrower or any of its Subsidiaries or (b) the receipt by the
Borrower or any of its Subsidiaries after the Restatement Effective Date of any
capital contribution (whether or not evidenced by any equity security issued by
the recipient of such contribution); provided that Equity Issuance shall not
include (x) any such issuance or sale by any Subsidiary
Credit Agreement
- 14 -
of the Borrower to the Borrower or any Wholly Owned Subsidiary of the Borrower
or (y) any capital contribution by the Borrower or any Wholly Owned Subsidiary
of the Borrower to any Subsidiary of the Borrower.
"Equity Public Offering" shall mean a public Equity Issuance
by the Borrower of its common stock pursuant to a registration statement filed
under the Securities Act of 1933, as amended.
"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of corporations (a)
described in Section 414(b) or (c) of the Code of which the Borrower is a member
and (b) solely for purposes of potential liability under Section 302(c)(11) of
ERISA and Section 412(c)(11) of the Code and the lien created under Section
302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or
(o) of the Code of which the Borrower is a member.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%), as quoted by the Agent at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) on
the date two Business Days prior to the first day of such Interest Period for
the offering by Chase to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan to be made by Chase
for such Interest Period. If Chase is not participating in any Eurodollar Loan
during any Interest Period therefor, the Eurodollar Base Rate for such Loan for
such Interest Period shall be determined by reference to the amount of the Loan
which Chase would have made or had outstanding had it been participating in such
Loan during such Interest Period.
Credit Agreement
- 15 -
"Eurodollar Loans" shall mean Loans that bear interest at
rates based on rates referred to in the definition of "Eurodollar Base Rate" in
this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Agent to be equal to the Eurodollar
Base Rate for such Loan for such Interest Period divided by 1 minus the Reserve
Requirement for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such
term in Section 10.01 hereof.
"Excess Cash Flow" shall mean, for any period, the sum
(without duplication) of (a) EBITDA for such period minus (b) the sum (without
duplication) of (i) all Debt Service during such period plus (ii) all Capital
Expenditures made by the Borrower and its Subsidiaries during such period plus
(iii) the excess, if any, of the consolidated Working Investment of the Borrower
and its Consolidated Subsidiaries at the end of such period over the
consolidated Working Investment of the Borrower and its Consolidated
Subsidiaries at the beginning of such period (or minus the excess, if any, of
such Working Investment at the beginning of such period over such Working
Investment at the end of such period) plus (c) Film Cash Payments scheduled to
have been made, but not made, during such period minus (d) the aggregate amount
of fees paid by the Borrower and its Subsidiaries to CRESAP during such period
minus (e) the aggregate amount of Federal and state income taxes paid by the
Borrower and its Consolidated Subsidiaries, net of refunds, for such period.
"Existing Credit Agreement" shall have the meaning assigned to
such term in the first "WHEREAS" clause of this Agreement.
"Existing Facility B Revolving Credit Loans" shall have the
meaning assigned to such term in the first "WHEREAS" clause of this Agreement.
"FCC" shall mean the Federal Communications Commission (or any
successor entity).
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for
Credit Agreement
- 16 -
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Agent.
"Film Cash Payments" shall mean, for any period, the sum
(determined on a consolidated basis and without duplication) of all payments by
the Borrower and its Subsidiaries made or scheduled to be made during such
period in respect of Film Obligations; provided that amounts applied to the
prepayment of Film Obligations owing under Prepayable Film Contracts shall not
be deemed to be Film Cash Payments. For the purposes of Section 9.15 hereof
only, (a) if the payment schedule for a Film Obligation is modified at no cost
(including, but not limited to, interest costs) to the Borrower or any of its
Subsidiaries, then the payments with respect to such Film Obligation shall be
deemed to be scheduled to be made pursuant to such modified schedule and (b) any
down payment on a Film Obligation shall be equally allocated over the term of
the payment period for such Film Obligation in amount per month during such
payment period equal to the amount of such down payment divided by the number of
months during such payment period.
"Film Obligations" shall mean obligations in respect of the
purchase, use, license or acquisition of programs, programming materials, films,
and similar assets used in connection with the business and operations of the
Borrower and its Subsidiaries.
"Final FCC Order" shall mean an order of the FCC that is no
longer subject to reconsideration or review by the FCC or by any court or
administrative body.
"Fixed Charges Ratio" shall mean, as at any date, the ratio of
(a) EBITDA for the period of twelve consecutive full calendar months ending on
or most recently ended prior to such date to (b) the sum for such period of (i)
Debt Service plus (ii) Capital Expenditures plus (iii) the aggregate amount of
Federal and state income taxes paid by the Borrower and its Consolidated
Subsidiaries, net of refunds, during such period plus (iv) the aggregate amount
of fees paid by the Borrower and its Subsidiaries to CRESAP during such period
plus (v) Dividend Payments made as permitted by Section 9.09(b) during such
period plus (vi) the aggregate amount of WSYX Option Extension Payments made
during such period, except to the extent that such WSYX Option Extension
Payments were paid (x) out of 25% of Excess Cash Flow for each fiscal year of
the Borrower ending before the date
Credit Agreement
- 17 -
of such payment (to the extent not otherwise applied by the Borrower in
accordance with the provisions of this Agreement), (y) with the proceeds of the
Loans or (z) by means of an Equity Issuance made pursuant to the Columbus Option
Agreement plus (vii) the WSYX Sale Price Differential, if paid during such
period, except to the extent such WSYX Sale Price Differential was paid (x) out
of 25% of Excess Cash Flow for each fiscal year of the Borrower ending before
the date of such payment (to the extent not otherwise applied by the Borrower in
accordance with the provisions of this Agreement), (y) with the proceeds of the
Loans or (z) by means of an Equity Issuance made pursuant to the Columbus Option
Agreement.
"Founders Notes" shall mean Indebtedness under the Julian
Smith Documents and Indebtedness under the Carolyn Smith
Documents.
"Founders Subordination Agreement" shall mean a second amended
and restated Founders Subordination Agreement substantially in the form of
Exhibit F hereto between Carolyn C. Smith and the Agent, as the same shall be
modified and supplemented and in effect from time to time.
"FSF-TV" shall mean FSF-TV, Inc., which operates WRDC- TV,
Channel 28, a television broadcasting station licensed to Raleigh-Durham, North
Carolina and serving the Raleigh-Durham area.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with the last
sentence of Section 1.02(a) hereof, are to be used in making the calculations
for purposes of determining compliance with the terms of this Agreement.
"GDC" shall mean Gerstell Development Corporation, a Maryland
corporation.
"GDC Security Agreement" shall mean a second amended and
restated Security Agreement substantially in the form of Exhibit E hereto
between GDC and the Agent, as the same shall be modified and supplemented and in
effect from time to time.
"GDLP" shall mean Gerstell Development Limited Partnership, a
Maryland limited partnership.
"Glencairn" shall mean Glencairn, Ltd., a Maryland
corporation.
Credit Agreement
- 18 -
"Glencairn Options" shall mean options for the purchase of all
of the issued and outstanding non-voting stock of Glencairn.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled (through stock or capital ownership or otherwise) by any of the
foregoing.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of his, her or its obligations or an agreement to assure a creditor
against loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other similar instrument
for the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business; provided that in no event shall the
term "Guarantee" include any Program Services Agreement or any obligations under
any Program Services Agreement. The terms "Guarantee" and "Guaranteed" used as a
verb shall have a correlative meaning.
"H and P Communications" shall mean H and P Communications,
Inc., a Nevada corporation, that on the date hereof owns 90% of the issued and
outstanding stock of WDBB.
"Hazardous Material" shall mean, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives, radioactive
materials, asbestos, urea formaldehyde foam insulation, and transformers or
other equipment that contain polychlorinated biphenyls ("PCBs"), (b) any
chemicals or other materials or substances that are now or hereafter become
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants,"
"pollutants" or words of similar import under any Environmental Law and (c) any
other chemical or other material or substance, exposure to which is now
Credit Agreement
- 19 -
or hereafter prohibited, limited or regulated under any Environmental Law.
"Immaterial Broadcast Licenses" shall mean Broadcast Licenses
(other than main transmitter licenses, auxiliary transmitter licenses (to the
extent in existence on the date hereof) and studio transmitter links (to the
extent necessary for the continued operation of the Stations), in each case
granted by the FCC, and extensions and renewals thereto or thereof) the absence
of which individually or together with all other such Broadcast Licenses could
not have a material adverse effect on the consolidated financial condition,
operations or prospects of the Borrower and its Consolidated Subsidiaries taken
as a whole.
"Indebtedness" shall mean, for any Person: (a) indebtedness
created, issued or incurred by such Person for borrowed money (whether by loan
or the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business so long as such trade
accounts payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; (f) Indebtedness of others Guaranteed
by such Person; (g) obligations of such Person under any non-competition
agreement, consulting agreement or similar agreement (other than the Baker
Employment Agreement) entered into in connection with any Acquisition; and (h)
if the Aggregate Consideration payable by such Person to extend and exercise any
option acquired in connection with any Other Acquisition (an "Extension and
Exercise Price") exceeds 20% of the Aggregate Consideration payable in
connection with such Other Acquisition, such Extension and Exercise Price;
provided that in no event shall the term "Indebtedness" include (i) Film
Obligations of such Person, (ii) obligations of such Person under any Program
Services Agreement, (iii) the Preferred Stock or the In-Kind Preferred Stock or
(iv) obligations of such Person to make WSYX Option Extension Payments. For
purposes of calculations hereunder based upon the amount of principal of or
interest on Indebtedness, there shall be excluded the effect of any
double-counting of obligations owing by the Borrower or any of its Subsidiaries
to GDLP in
Credit Agreement
- 20 -
respect of Property owned by GDLP and used by the Borrower or any of its
Subsidiaries and Guarantees issued by the Borrower or any of its Subsidiaries of
Capital Lease Obligations related to such Property permitted by Section 9.07(g)
hereof.
"Initial FCC Order" shall mean an order of the FCC that is not
a Final FCC Order.
"In-Kind Preferred Stock" shall have the meaning assigned to
such term in the definition of "Preferred Stock" in this Section 1.01.
"Interest Coverage Ratio" shall mean, as at any date, the
ratio of (a) EBITDA for the period of twelve consecutive full calendar months
ending on or most recently ended prior to such date to (b) Interest Expense for
such period.
"Interest Expense" shall mean, for any period, the sum, for
the Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following: (a) all
interest in respect of Indebtedness accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amounts
payable (or minus the net amounts receivable) under Interest Rate Protection
Agreements accrued during such period (whether or not actually paid or received
during such period) minus (c) all cash interest income received during such
period. Any reference herein to calculating Interest Expense for any period on a
"pro forma" basis shall mean that, for purposes of the preceding clause (a), (i)
the Indebtedness on the basis of which Interest Expense is so calculated shall
mean Indebtedness outstanding as of the relevant date of calculation after
giving effect to any repayments and any incurrence of Indebtedness on such date
and (ii) such calculation shall be made applying the respective rates of
interest in effect for such Indebtedness on such date. Subject to the preceding
sentence, any reference herein to calculating Interest Expense for any period a
portion of which falls before the Restatement Effective Date shall be deemed to
mean Interest Expense for the portion of such period consisting of full calendar
months falling after the Restatement Effective Date multiplied by a fraction the
numerator of which is twelve and the denominator of which is the number of such
full calendar months included in such period. In the event that any Disposition
occurs during any period for which Interest Expense is to be calculated and
Loans are prepaid or Commitments are reduced in connection therewith, such
Interest Expense shall be calculated as if such prepayments and reductions had
occurred on the first day of such period using such reasonable estimates and pro
forma adjustments effected in accordance with generally
Credit Agreement
- 21 -
accepted accounting principles as the Borrower shall propose and the Agent and
at least one Managing Agent shall approve.
"Interest Period" shall mean, with respect to any Eurodollar
Loan, each period commencing on the date such Eurodollar Loan is made or
Converted from a Base Rate Loan or (in the event of a Continuation) the last day
of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first, second, third, sixth or ninth
calendar month thereafter, as the Borrower may select as provided in Section
4.05 hereof, except that each Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing:
(a) if any Interest Period for any Revolving Credit Loan would
otherwise end after the Revolving Credit Commitment Termination Date,
such Interest Period shall end on the Revolving Credit Commitment
Termination Date;
(b) no Interest Period for any Revolving Credit Loan may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto, the aggregate principal
amount of the Revolving Credit Loans having Interest Periods which end
after such Revolving Credit Commitment Reduction Date plus such
Lender's Revolving Credit Commitment Percentage of outstanding Letters
of Credit that expire after such Revolving Credit Commitment Reduction
Date, shall be equal to or less than the aggregate amount of the
Revolving Credit Commitments scheduled to be outstanding after giving
effect to the reductions thereof to occur on such Revolving Credit
Commitment Reduction Date;
(c) no Interest Period for any Tranche A Term Loan may
commence before and end after any Tranche A Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of
the Tranche A Term Loans having Interest Periods which end after such
Tranche A Principal Payment Date shall be equal to or less than the
aggregate principal amount of Tranche A Term Loans scheduled to be
outstanding after giving effect to the payments of principal required
to be made on such Tranche A Principal Payment Date;
(d) no Interest Period for any Tranche B Term Loan may
commence before and end after any Tranche B Principal Payment Date
unless, after giving effect thereto, the
Credit Agreement
- 22 -
aggregate principal amount of the Tranche B Term Loans having Interest
Periods which end after such Tranche B Principal Payment Date shall be
equal to or less than the aggregate principal amount of Tranche B Term
Loans scheduled to be outstanding after giving effect to the payments
of principal required to be made on such Tranche B Principal Payment
Date;
(e) no Interest Period for any Tranche C Term Loan may
commence before and end after any Tranche C Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of
the Tranche C Term Loans having Interest Periods which end after such
Tranche C Principal Payment Date shall be equal to or less than the
aggregate principal amount of Tranche C Term Loans scheduled to be
outstanding after giving effect to the payments of principal required
to be made on such Tranche C Principal Payment Date;
(f) each Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business
Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and
(g) notwithstanding clauses (a) through (e) above, no Interest
Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any
Person, an interest rate swap, cap or collar agreement or similar arrangement
between such Person and a financial institution providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such short sale); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
Property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such Property to such Person, but excluding
any such advance, loan or extension of credit having a term not
Credit Agreement
- 23 -
exceeding 90 days representing the purchase price of programming, advertising,
inventory or supplies sold in the ordinary course of business); or (c) the
entering into of any Guarantee of, or other contingent obligation with respect
to, Indebtedness or other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to such
Person.
"Issuing Bank" shall mean Chase.
-------------
"Julian Smith Documents" shall mean (a) the Term Note dated
September 30, 1990 of the Borrower payable to Julian S. Smith in the original
face amount of $7,515,000 and heretofore assigned to Carolyn C. Smith and (b)
all agreements, documents or other instruments providing for any Guarantee of
all or any portion of such Term Note by any Obligor.
"Kansas City TV 62" shall mean Kansas City TV 62 Limited
Partnership, a Delaware limited partnership.
"KIG" shall mean Keyser Investment Group, Inc., a Maryland
corporation.
"KRRT-TV" shall mean KRRT-TV, a television broadcasting
station licensed to San Antonio, Texas and serving the San Antonio area.
"KSMO Option" shall mean the Option Agreement dated as of May
24, 1994 between Kansas City TV 62 and the Borrower or any of its Subsidiaries
(as assignee of the Smith Brothers) providing for the grant by Kansas City TV 62
to the Borrower or such Subsidiary of an option to acquire the Properties
relating to KSMO-TV referred to therein as "Station Assets" and to assume the
liabilities relating to KSMO-TV referred to therein as "Assumed Liabilities", as
the same may be modified and supplemented and in effect from time to time.
"KSMO-TV" shall mean KSMO-TV, a television broadcasting
station licensed to Kansas City, Missouri and serving the Kansas City area.
"Letter of Credit" shall have the meaning assigned to such
term in Section 2.10 hereof.
"Letter of Credit Documents" shall mean, collectively, any
application for a Letter of Credit and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such
Credit Agreement
- 24 -
obligations, each as the same may be modified and supplemented and in effect
from time to time.
"Letter of Credit Interest" shall mean, for each Revolving
Credit Lender, such Revolving Credit Lender's participation interest (or, in the
case of the Issuing Bank, the Issuing Bank's retained interest) in the Issuing
Bank's liability under Letters of Credit and such Revolving Credit Lender's
rights and interests in Reimbursement Obligations and fees, interest and other
amounts payable in connection with Letters of Credit and Reimbursement
Obligations.
"Letter of Credit Liability" shall mean, without duplication,
at any time, the sum of (a) the undrawn face amount of all outstanding Letters
of Credit plus (b) the aggregate unpaid principal amount of all Reimbursement
Obligations of the Borrower at such time due and payable in respect of all
drawings made under all Letters of Credit. For purposes of this Agreement, a
Revolving Credit Lender (other than the Issuing Bank) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest in
all outstanding Letters of Credit and the aggregate unpaid principal amount of
all Reimbursement Obligations under Section 2.10 hereof, and the Issuing Bank
shall be deemed to hold a Letter of Credit Liability in an amount equal to its
retained interest in all outstanding Letters of Credit and the aggregate unpaid
principal amount of all Reimbursement Obligations after giving effect to the
acquisition by the Revolving Credit Lenders other than the Issuing Bank of their
participation interests under said Section 2.10.
"License Subsidiaries" shall mean, (a) with respect to each
Station that is an Owned Station on the date hereof, the Subsidiary of the
Borrower listed on Schedule IV hereto as the holder of the Broadcast Licenses
for such Owned Station and (b) with respect to any Owned Station hereafter
acquired by the Borrower or any of its Subsidiaries, the Subsidiary of the
Borrower formed, created, or acquired after the date hereof that holds the
Broadcast Licenses for such Owned Station.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Basic Documents, the
Borrower or any of its Subsidiaries shall be deemed to own subject to a Lien any
Property which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to such Property.
Credit Agreement
- 25 -
"Loans" shall mean Revolving Credit Loans, Tranche A Term
Loans, Tranche B Term Loans and Tranche C Term Loans.
"Majority Revolving Credit Lenders" shall mean, subject to the
last paragraph of Section 12.04 hereof, Revolving Credit Lenders having at least
51% of the aggregate amount of the Revolving Credit Commitments or, if the
Revolving Credit Commitments shall have terminated, Revolving Credit Lenders
holding at least 51% of the sum of (a) the aggregate unpaid principal amount of
the Revolving Credit Loans plus (b) the aggregate amount of all Letter of Credit
Liabilities.
"Majority Tranche A Lenders" shall mean, subject to the last
paragraph of Section 12.04 hereof, Tranche A Lenders having at least 51% of the
aggregate amount of the Tranche A Term Loan Commitments or, if the Tranche A
Term Loan Commitments shall have terminated, Tranche A Lenders holding at least
51% of the aggregate unpaid principal amount of the Tranche A Term Loans.
"Majority Tranche B Lenders" shall mean, subject to the last
paragraph of Section 12.04 hereof, Tranche B Lenders having at least 51% of the
aggregate amount of the Tranche B Term Loan Commitments or, if the Tranche B
Term Loan Commitments shall have terminated, Tranche B Lenders holding at least
51% of the aggregate unpaid principal amount of the Tranche B Term Loans.
"Majority Tranche C Lenders" shall mean, subject to the last
paragraph of Section 12.04 hereof, Tranche C Lenders having at least 51% of the
aggregate amount of the Tranche C Term Loan Commitments or, if the Tranche C
Term Loan Commitments shall have terminated, Tranche C Lenders holding at least
51% of the aggregate unpaid principal amount of the Tranche C Term Loans.
"Majority Lenders" shall mean, subject to the last paragraph
of Section 12.04 hereof, Lenders holding at least 51% of the aggregate amount of
the Credit Exposures of all of the Lenders outstanding at the time of
determination. For purposes of the foregoing calculations there shall be
excluded any Credit Exposure directly or indirectly held by the Borrower or any
of its Subsidiaries or any of their Affiliates following an assignment or
participation as contemplated by Section 12.06 hereof.
"Managing Agents" shall mean Bankers Trust Company, First
Union National Bank of North Carolina and NationsBank, N.A., excluding any such
Person that, at the time of determination, is not a Lender hereunder. If there
are no Managing Agents at the time of determination, each reference herein to
one or more Managing Agents shall be deemed to refer to the Agent.
Credit Agreement
- 26 -
"Margin Stock" shall mean margin stock within the meaning of
Regulations G, U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, business, operations, financial condition, liabilities,
prospects or capitalization of the Borrower and its Subsidiaries, or of the
Stations, taken as a whole, (b) the ability of any Person to perform its
obligations under any of the Transaction Documents to which it is a party, (c)
the validity or enforceability of any of the Basic Documents, (d) the rights and
remedies of the Lenders and the Agent under any of the Basic Documents or (e)
the timely payment of the principal of or interest on the Loans or the
Reimbursement Obligations or other amounts payable under any Basic Document.
"Material Third-Party Licensee" shall mean (a) each River City
Seller that holds a Broadcast License for any Contract Station, (b) each of
Glencairn and its Subsidiaries if, and for so long as, Glencairn or such
Subsidiary, as the case may be, holds a Broadcast License for any Contract
Station, (c) each Person holding a Broadcast License for WPTT-TV, a television
broadcasting station licensed to Pittsburgh, Pennsylvania and serving the
Pittsburgh area, until such time, if any, that such station ceases to be a
Contract Station, (d) each Person holding a Broadcast License for KRRT-TV, until
such time, if any, that such station ceases to be a Contract Station, and (e)
each Person holding a Broadcast License for any Contract Station acquired
pursuant to an Other Acquisition for an Aggregate Consideration exceeding
$6,000,000.
"Mortgage" shall mean each mortgage, deed of trust or similar
instrument executed and delivered to the Agent prior to the date hereof or
pursuant to Section 9.28 of this Agreement, as modified and supplemented and in
effect from time to time, including without limitation (in the case of Mortgages
executed and delivered pursuant to the Existing Credit Agreement) by operation
of the Mortgage Amendments.
"Mortgage Amendments" shall mean instruments satisfactory to
the Agent in form and substance amending those Mortgages that were executed and
delivered to the Agent prior to the date hereof.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Assets" shall mean, with respect to any Subsidiary
Guarantor as at any date, an amount equal to the excess of the
Credit Agreement
- 27 -
fair saleable value of the assets of such Subsidiary Guarantor as at such date
(without taking into account the rights of such Subsidiary Guarantor under
Section 6.07 hereof), and excluding the value of the shares of stock owned by
such Subsidiary Guarantor in any other Subsidiary Guarantor party to this
Agreement on such date over the amount that would be required to pay the
probable liabilities of such Subsidiary Guarantor determined as at such date
(excluding the obligations of such Subsidiary Guarantor under Section 6 hereof)
on all of its debts.
"Net Available Proceeds" shall mean:
----------------------
(a) in the case of any Disposition, an amount (not less than
zero) equal to the amount of Net Cash Payments received by the Borrower
and its Subsidiaries in connection with such Disposition;
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (i) reasonable expenses incurred by the Borrower
and its Subsidiaries in connection therewith and (ii) contractually
required repayments of Indebtedness to the extent secured by a Lien on
the Property to which such Casualty Event relates and any income and
transfer taxes payable by the Borrower any of its Subsidiaries in
respect of such Casualty Event;
(c) in the case of any Equity Issuance, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect of
such Equity Issuance net of reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith; and
(d) in the case of any issuance of any Additional Senior
Subordinated Notes, the aggregate principal amount thereof net of
reasonable expenses incurred by the Borrower and its Subsidiaries in
connection therewith.
"Net Cash Payments" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments (including, without
limitation, all cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received), and the fair market value of any non-cash consideration, received by
the Borrower or its Subsidiaries directly or indirectly in connection with such
Disposition; provided that (a) Net Cash Payments shall be net of (i) the amount
of any legal, title and recording tax expenses, commissions and other fees and
expenses paid by the Borrower and
Credit Agreement
- 28 -
its Subsidiaries in connection with such Disposition and (ii) any Federal, state
and local income or other taxes estimated to be payable by the Borrower and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes are in fact paid to the relevant Governmental Authority not
later than three months (in the case of Federal taxes) or nine months (in the
case of other taxes) after the date of such Disposition) and (b) Net Cash
Payments shall be net of any repayments by the Borrower or any of its
Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is secured
by a Lien on the Property that is the subject of such Disposition and (ii) the
transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the Disposition of such Property.
"Net Cash Revenues" shall mean, for any period, the sum of (a)
gross cash operating revenues of the Borrower and its Subsidiaries for such
period minus (b) the aggregate amount of sales commissions payable in respect of
advertising or air time sold during such period (whether payable to national
advertising representatives, to advertising agencies or to third parties).
"1995 Senior Subordinated Note Indenture" shall mean the
Indenture dated as of August 28, 1995 among the Borrower, certain of its
Subsidiaries and United States Trust Company of New York, as trustee, as the
same shall, subject to Section 9.24 hereof, be modified and supplemented and in
effect from time to time.
"1995 Senior Subordinated Notes" shall mean the 10% Senior
Subordinated Notes due 2005 issued by the Borrower under the 1995 Senior
Subordinated Note Indenture, as the same shall, subject to Section 9.24 hereof,
be modified and supplemented and in effect from time to time.
"1993 Senior Subordinated Note Indenture" shall mean the
Indenture dated as of December 9, 1993 among the Borrower, certain of its
Subsidiaries and First Union National Bank of North Carolina, as trustee, as the
same shall, subject to Section 9.24 hereof, be modified and supplemented and in
effect from time to time.
"1993 Senior Subordinated Notes" shall mean the 10% Senior
Subordinated Notes due 2003 issued by the Borrower under the 1993 Senior
Subordinated Note Indenture, as the same shall, subject to Section 9.24 hereof,
be modified and supplemented and in effect from time to time.
"Notes" shall mean the Revolving Credit Notes, the Tranche A
Term Loan Notes, the Tranche B Term Loan Notes and the
Credit Agreement
- 29 -
Tranche C Term Loan Notes.
"Other Acquisition" shall mean (a) the acquisition by the
Borrower or any of its Subsidiaries in accordance with the terms hereof of
substantially all of the assets (including, without limitation, Broadcast
Licenses) of a television or radio station in the United States in a single
transaction (i.e., not by means of the acquisition of an option for such assets
and the subsequent exercise of such option), (b) (i) the acquisition by the
Borrower or any of its Subsidiaries in accordance with the terms hereof of (x)
substantially all of the assets (other than Broadcast Licenses and other
Property required pursuant to the rules and regulations of the FCC to be sold in
connection with the transfer of such Broadcast Licenses) of a television or
radio station in the United States and (y) an option to acquire the Broadcast
Licenses and such other assets of such television or radio station and (ii) the
entering into by the Borrower or any of its Subsidiaries of an agreement
contemplated by clause (b) of the definition of "Program Services Agreement" in
this Section 1.01 with respect to such station, (c) the consummation of the
acquisition of assets by the Borrower or any of its Subsidiaries pursuant to the
exercise of an option referred to in the preceding clause (b)(y), together with
the termination of the related Program Services Agreement referred to in the
preceding clause (b)(ii) and (d) the acquisition of assets or capital stock (or
other equity ownership interest) of any Person pursuant to an exchange permitted
by Section 9.05(d)(iv)(y) hereof; provided that the term "Other Acquisition"
shall not include the River City Non-License Acquisition or any Subject
Acquisition. As used in this definition, the acquisition of assets shall be
deemed to include reference to the acquisition of the voting capital stock (or
other equity ownership interest) of the Person that owns such assets and
references to the acquisition and exercise of an option to acquire assets shall
be deemed to include the acquisition and exercise of the option to acquire
voting capital stock (or other equity ownership interest) of the Person that
owns such assets.
"Owned Station" shall mean (a) each television or radio
station listed in Part A of Schedule IV hereto and (b) any television or radio
station the Broadcast Licenses of which become owned by the Borrower or any of
its Subsidiaries on or after the date hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
Credit Agreement
- 30 -
"Permitted Investments" shall mean, for any Person: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or of any agency thereof, in either case maturing not more than 90 days
from the date of acquisition thereof by such Person; (b) certificates of deposit
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000, maturing not more than 90 days from the date
of acquisition thereof by such Person; and (c) commercial paper rated A-2 or
better or P-2 or better by Standard & Poor's Ratings Group or Moody's Investors
Service, Inc., respectively, maturing not more than 90 days from the date of
acquisition thereof by such Person.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by the Borrower or any ERISA Affiliate and which is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Interest Condition" shall mean (a) the failure
by the Borrower to pay when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise) any principal amount of any Loan, Note or
Reimbursement Obligation, (b) the failure by the Borrower to pay when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise) any other amount payable by the Borrower hereunder or under any Note
for more than three Business Days or (c) the existence of any other Event of
Default.
"Post-Default Rate" shall mean a rate per annum equal to the
Post-Default Margin (as defined below) plus the Base Rate as in effect from time
to time plus the Applicable Margin, provided that, as applied to principal of a
Eurodollar Loan, the "Post-Default Rate" shall be the Post-Default Margin plus
the interest rate for such Loan as provided in Section 3.02(b) hereof. For
purposes of this definition, the "Post-Default Margin" shall mean 2% per annum
or, if at the time of determination the Borrower has failed to pay when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise) any amount payable by the Borrower hereunder or under any Note and
such failure shall be continuing, 5% per annum.
Credit Agreement
- 31 -
"Preferred Stock" shall mean (a) Preferred Stock issued by the
Borrower after the date hereof and on or before June 30, 1997 (i) having an
aggregate liquidation preference not exceeding $300,000,000 (excluding the
aggregate liquidation preference of the In-Kind Preferred Stock), (ii) providing
for a dividend for each share thereof at a rate not exceeding 15% of the
liquidation preference of such share, (iii) allowing the Borrower, at its
option, with respect to dividends accruing, accreting or accumulating on or
before the fifth anniversary of the date of initial issuance of such Preferred
Stock, to pay such dividends in lieu of cash by issuing additional shares
thereof having an aggregate liquidation preference equal to the amount of such
dividends that are payable at the time of issuance of such additional shares
(such additional shares being referred to herein as "In-Kind Preferred Stock"),
(iv) which neither the Borrower nor any of its Subsidiaries may be required to
repurchase or redeem or make sinking fund payments with respect to at any time
or under any circumstances before June 30, 2008, (v) which are convertible into
Converted Senior Subordinated Notes as provided in Section 9.07(h) hereof or
into the Borrower's Class A Common Stock and (vi) the other terms and conditions
of which are satisfactory to the Majority Lenders and (b) any Preferred Stock
(the "Replacement Preferred Stock") issued in exchange for the Preferred Stock
referred to in the preceding clause (a) or the In-Kind Preferred Stock, provided
that such Replacement Preferred Stock shall have the same aggregate liquidation
preference as the Preferred Stock for which it is exchanged and satisfy clauses
(ii) through (vi) of the preceding clause (a).
"Prepayable Film Contract" shall mean a contract evidencing a
Film Obligation in which the amount owed by the Borrower or any of its
Subsidiaries under such contract exceeds the remaining value of such contract to
the Borrower or such Subsidiary, as reasonably determined by the Borrower.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at its principal office as its prime commercial lending rate.
"Program Services Agreements" shall mean (a) the agreements
listed in Schedule VIII hereto and (b) any agreement having a term of not less
than ten years entered into by the Borrower or any of its Subsidiaries (other
than License Subsidiaries) in accordance with Section 9.29 hereof as part of an
Other Acquisition relating to a Contract Station or in connection with a
disposition of property in accordance with Section 9.05(d)(iii) hereof, pursuant
to which agreement the Borrower or any of its Subsidiaries (other than License
Subsidiaries) will obtain the right to program and sell
Credit Agreement
- 32 -
advertising on a substantial portion of such Contract Station's inventory of
broadcast time.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, and including all Broadcast Licenses.
"Quarterly Dates" shall mean the last Business Day of March,
June, September and December in each year, the first of which shall be the first
such day after the date of this Agreement.
"Registered Holder" shall have the meaning assigned to such
term in Section 5.07(a)(ii) hereof.
"Registered Loan" shall have the meaning assigned to such term
in Section 2.07(g) hereof.
"Registered Note" shall have the meaning assigned to such term
in Section 2.07(g) hereof.
"Regulations A, D, G, U and X" shall mean, respectively,
Regulations A, D, G, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be amended or supplemented from time
to time.
"Regulatory Change" shall mean, with respect to any Lender,
any change after the date of this Agreement in United States Federal, state or
foreign law or regulations (including, without limitation, Regulation D) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks including such Lender of or under any United States
Federal, state or foreign law or regulations (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reimbursement Obligations" shall mean, at any time, the
obligations of the Borrower then outstanding, or which may thereafter arise in
respect of Letters of Credit, to reimburse amounts paid by the Issuing Bank in
respect of any drawings thereunder.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of
Credit Agreement
- 33 -
Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Relevant Corporation" shall have the meaning assigned to such
term in Section 7.01(a)(i) hereof.
"Reserve Requirement" shall mean, for any Interest Period for
any Eurodollar Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (a) any category of liabilities which
includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (b) any category of extensions of credit or other assets which
includes Eurodollar Loans.
"Restatement Effective Date" shall mean the date on which the
Agent notifies the parties hereto that the conditions to effectiveness set forth
in Section 7.01 hereof shall have been satisfied or waived.
"Revolving Credit Commitment" shall mean, as to each Revolving
Credit Lender, the obligation of such Lender to make Revolving Credit Loans, and
to issue or participate in Letters of Credit pursuant to Section 2.10 hereof, in
an aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set opposite such Lender's name on Schedule XI hereto or,
in the case of a Person that becomes a Revolving Credit Lender pursuant to an
assignment permitted by Section 12.06 hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (in each
case as the same may be reduced at any time or from time to time pursuant to
Section 2.03 hereof). The aggregate amount of Revolving Credit Commitments on
the date hereof is $250,000,000.
"Revolving Credit Commitment Percentage" shall mean, with
respect to any Revolving Credit Lender, the ratio of (a) the amount of the
Revolving Credit Commitment of such Revolving Credit Lender to (b) the aggregate
amount of the Revolving Credit Commitments of all of the Revolving Credit
Lenders. If, at the time of determination of the Revolving Credit Commitment
Percentage of any Revolving Credit Lender or Revolving Credit Lenders, the
Revolving Credit Commitments have terminated, such determination shall be made
upon the basis of the Revolving
Credit Agreement
- 34 -
Credit Commitments as in effect immediately prior to such termination.
"Revolving Credit Commitment Reduction Dates" shall mean (a)
the nineteen consecutive Quarterly Dates beginning on the Quarterly Date falling
on or nearest to March 31, 1999 and ending on the Quarterly Date falling on or
nearest to September 30, 2003 and (b) the Revolving Credit Commitment
Termination Date.
"Revolving Credit Commitment Termination Date" shall mean the
last Business Day of November, 2003.
"Revolving Credit Lenders" shall mean (a) on the date hereof,
the Lenders having Revolving Credit Commitments on the signature pages hereof
and (b) thereafter, the Lenders from time to time holding Revolving Credit
Commitments, Revolving Credit Loans and/or Letter of Credit Liabilities after
giving effect to any assignments thereof permitted by Section 12.06 hereof.
"Revolving Credit Loans" shall mean the loans provided for by
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Credit Notes" shall mean the promissory notes
provided for by Section 2.07(a) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time. The term "Revolving Credit
Notes" shall include any Registered Notes evidencing Revolving Credit Loans
executed and delivered pursuant to Section 2.07(g) hereof.
"River City" shall mean River City Broadcasting, L.P., a
Delaware limited partnership.
"River City Acquisition Documents" shall mean the River City
Asset Purchase Agreement, the River City Option Agreements, the Baker Employment
Agreement, the Baker Stock Option Agreement, the Corporate Employee Stock Option
Agreement, the Station Employee Stock Option Agreement and all other agreements
and instruments (together with any and all exhibits, annexes and schedules
thereto) executed and delivered in connection with the River City Non-License
Acquisition.
"River City Asset Purchase Agreement" shall mean the Amended
and Restated Asset Purchase Agreement dated as of April 10, 1996, as amended and
restated as of a date prior to the date hereof, by and between River City, as
Seller, and the Borrower, as Buyer, as the same shall be modified and
supplemented and in effect from time to time.
Credit Agreement
- 35 -
"River City Group I License Acquisition" shall mean the
acquisition by the Borrower or any of its subsidiaries, upon its exercise of any
option granted under the River City Group I Option Agreement, of the "License
Assets" referred to in the River City Group I Option Agreement used or held for
use by the River City Sellers with respect to a "Station" referred to in the
River City Group I Option Agreement and the assumption by the Borrower or such
Subsidiary of the "Assumed Liabilities" referred to in the River City Group I
Option Agreement with respect to such "Station".
"River City License Acquisitions" shall mean each River City
Group I License Acquisition and the WSYX Acquisition.
"River City Non-License Acquisition" shall mean the occurrence
on the Restatement Effective Date of all of the following (a) (i) the transfer
by River City to Borrower under the River City Asset Purchase Agreement of the
"Station Assets" referred to therein and (ii) the assumption by the Borrower
from River City of the "Assumed Liabilities" referred to in the River City Asset
Purchase Agreement, (b) the execution and delivery by the Borrower and the River
City Sellers of (i) the River City Group I Option Agreement, (ii) the Columbus
Option Agreement and (iii) a Program Services Agreement with respect to each
"Group I Station" referred to in the River City Group I Option Agreement, (c)
the execution and delivery by the Borrower and Barry Baker of the Baker
Employment Agreement and (d) the issuance by the Borrower to River City of the
Seller Stock.
"River City Group I Option Agreement" shall mean the Group I
Option Agreement dated as of May 31, 1996 by and between the River City Sellers,
as Sellers, and the Borrower, as Option Holder, as the same shall be modified
and supplemented and in effect from time to time.
"River City Option Agreements" shall mean the River City Group
I Option Agreement and the Columbus Option Agreement.
"River City Sellers" shall mean River City and River City
License Partnership, a Missouri general partnership.
"River City Corporate Employees" shall mean the Persons listed
in Schedule 2.5(d) to the River City Asset Purchase Agreement.
"Security Agreement" shall mean a second amended and restated
Security Agreement substantially in the form of Exhibit C hereto between the
Obligors and the Agent, as the same shall be modified and supplemented and in
effect from time to time.
Credit Agreement
- 36 -
"Security Documents" shall mean, collectively, the Security
Agreement, the Affiliate Guarantee and Security Agreement, the GDC Security
Agreement, the Mortgages, the Mortgage Amendments and all Uniform Commercial
Code financing statements required by any of the foregoing Security Documents to
be filed with respect to the security interests in personal Property and
fixtures created pursuant thereto.
"Seller Stock" shall mean (a) the Borrower's Series A
Exchangeable Preferred Stock, par value $.01 per share, having a value on the
Restatement Effective Date of $115,000,000, issued by the Borrower to River City
in connection with the River City Non-License Acquisition and (b) the Borrower's
Series B Convertible Preferred Stock, par value $.01 per share, having a value
on the Restatement Effective Date of $115,000,000, to be issued by the Borrower
to River City in exchange for such Series A Exchangeable Preferred Stock.
"Senior Indebtedness" shall mean Total Indebtedness other than
Subordinated Indebtedness.
"Senior Indebtedness Ratio" shall mean, as at any date, the
ratio of (a) Senior Indebtedness outstanding on such date to (b) EBITDA for the
period of twelve consecutive full calendar months ending on or most recently
ended prior to such date.
"Senior Subordinated Note Indentures" shall mean the 1995
Senior Subordinated Note Indenture, the 1993 Senior Subordinated Note Indenture
and, after the respective issuances of the Additional Senior Subordinated Notes
and the Converted Subordinated Notes, the respective indentures under which the
same are issued.
"Senior Subordinated Notes" shall mean the 1993 Senior
Subordinated Notes, the 1995 Senior Subordinated Notes and, after the respective
issuances thereof, the Additional Senior Subordinated Notes and the Converted
Subordinated Notes.
"Smith Brothers" shall mean Frederick G. Smith, David D.
Smith, J. Duncan Smith and Robert E. Smith.
"Sports Rights Payments" shall mean, for any period, payments
made in cash by the Borrower and its Subsidiaries during such period to sports
networks or sports franchises for the rights to broadcast multiple sporting
events over a period of time.
"Station Employee Stock Option Agreements" shall mean the
respective Stock Option Agreements dated as of April 10, 1996 between the
Borrower and certain employees of the Borrower and
Credit Agreement
- 37 -
its Subsidiaries, providing, among other things, for the right of such employees
to acquire, in the aggregate, not more than 400,000 shares of the Borrower's
Class A Common Stock on the terms and conditions set forth therein, in each case
as the same may be modified and supplemented and in effect from time to time.
"Stations" shall mean the Owned Stations and the Contract
Stations.
"Subject Acquisition" shall have the meaning assigned to such
term in Section 9.05(d)(i) hereof.
"Subordinated Film Indebtedness" shall mean Film Obligations
of the Borrower and its Subsidiaries which are subordinated to the obligations
of the Borrower and its Subsidiaries hereunder on terms and conditions, and
(except for Film Obligations owing on the date hereof with respect to KSMO-TV
and WSTR-TV) the other provisions of which are satisfactory to the Majority
Lenders.
"Subordinated Indebtedness" shall mean (a) Founders Notes, (b)
Indebtedness under the Senior Subordinated Notes, (c) Subordinated Film
Indebtedness and (d) guarantees of the Indebtedness under the Senior
Subordinated Notes provided by any Subsidiary Guarantor under the Senior
Subordinated Note Indentures.
"Subsidiary" shall mean, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. "Wholly Owned Subsidiary" shall mean any such corporation,
partnership or other entity of which all of such securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) are so owned or controlled. Notwithstanding anything contained herein to
the contrary, CRESAP shall be deemed to be a Subsidiary of the Borrower or of a
Subsidiary of the Borrower for all purposes of this Agreement except that CRESAP
shall not be required to be a Subsidiary Guarantor or to grant a security
interest in any of its Property.
Credit Agreement
- 38 -
"Total Indebtedness" shall mean, as at any date, all
Indebtedness on such date of the Borrower and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP).
"Total Indebtedness Ratio" shall mean, as at any date, the
ratio of (a) Total Indebtedness outstanding on such date to (b) EBITDA for the
period of twelve consecutive full calendar months ending on or most recently
ended prior to such date.
"Tranche A Lenders" shall mean (a) on the date hereof, the
Lenders having Tranche A Term Loan Commitments on the signature pages hereof and
(b) thereafter, the Lenders from time to time holding Tranche A Term Loans
and/or Tranche A Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b) hereof.
"Tranche A Principal Payment Dates" shall mean the 25
consecutive Quarterly Dates beginning on the Quarterly Date falling on or
nearest to December 31, 1996 and ending on the Quarterly Date falling on or
nearest to December 31, 2002.
"Tranche A Term Loan Commitment" shall mean, as to each
Tranche A Lender, the obligation of such Tranche A Lender to make a single
Tranche A Term Loan in an aggregate principal amount up to but not exceeding the
amount set opposite the name of such Tranche A Lender on Schedule XII hereto (as
the same may be reduced from time to time pursuant to Section 2.03). The
aggregate principal amount of the Tranche A Term Loan Commitments on the date
hereof is $550,000,000.
"Tranche A Term Loan Notes" shall mean the promissory notes
provided for by Section 2.07(b) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time. The term "Tranche A Term Loan
Notes" shall include any Registered Notes evidencing Tranche A Term Loans
executed and delivered pursuant to Section 2.07(g) hereof.
"Tranche A Term Loans" shall mean the loans provided for by
Section 2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Tranche B Lenders" shall mean (a) on the date hereof, the
Lenders having Tranche B Term Loan Commitments on the signature pages hereof
and/or (b) thereafter, the Lenders from time to time holding Tranche B Term
Loans and Tranche B Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b) hereof.
Credit Agreement
- 39 -
"Tranche B Principal Payment Dates" shall mean (a) the 28
consecutive Quarterly Dates beginning on the Quarterly Date falling on or
nearest to December 31, 1996 and ending on the Quarterly Date falling on or
nearest to September 30, 2003 and (b) the last Business Day of November, 2003.
"Tranche B Term Loan Commitment" shall mean, as to each
Tranche B Lender, the obligation of such Tranche B Lender to make a single
Tranche B Term Loan in an aggregate principal amount up to but not exceeding the
amount set opposite the name of such Tranche B Lender on Schedule XIII hereto
(as the same may be reduced from time to time pursuant to Section 2.03). The
aggregate principal amount of the Tranche B Term Loan Commitments on the date
hereof is $200,000,000.
"Tranche B Term Loan Notes" shall mean the promissory notes
provided for by Section 2.07(c) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time. The term "Tranche B Term Loan
Notes" shall include any Registered Notes evidencing Tranche B Term Loans
executed and delivered pursuant to Section 2.07(g) hereof.
"Tranche B Term Loans" shall mean the loans provided for by
Section 2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Tranche C Lenders" shall mean (a) on Tranche C Term Loan
Activation Date, the Lenders signatory to the Tranche C Term Loan Activation
Notice and (b) thereafter, the Lenders from time to time holding Tranche C Term
Loans and/or Tranche C Term Loan Commitments after giving effect to any
assignments thereof permitted by Section 12.06(b) hereof.
"Tranche C Principal Payment Dates" shall mean (a) the 25
consecutive Quarterly Dates beginning on the Quarterly Date falling on or
nearest to September 30, 1997 and ending on the Quarterly Date falling on or
nearest to September 30, 2003 and (b) the last Business Day of November, 2003.
"Tranche C Term Loan Activation Date" shall mean the date
designated as such in the Tranche C Term Loan Activation Notice.
"Tranche C Term Loan Activation Notice" shall mean a notice
substantially in the form of Exhibit B hereto.
"Tranche C Term Loan Commitment" shall mean, as to each
Tranche C Lender, on and after the Tranche C Term Loan Activation Date, the
obligation of such Tranche C Lender to make one or more
Credit Agreement
- 40 -
Tranche C Term Loans in an aggregate principal amount up to but not exceeding
the amount set opposite the name of such Tranche C Lender on the Tranche C Term
Loan Activation Notice under the caption "Tranche C Term Loan Commitment" or, in
the case of a Person that becomes a Tranche C Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.03). The aggregate
principal amount of the Tranche C Term Loan Commitments on the date hereof is
zero and shall not exceed $200,000,000.
"Tranche C Term Loan Commitment Termination Date" shall mean
September 29, 1997.
"Tranche C Term Loan Notes" shall mean the promissory notes
provided for by Section 2.07(d) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time. The term "Tranche C Term Loan
Notes" shall include any Registered Notes evidencing Tranche C Term Loans
executed and delivered pursuant to Section 2.07(g) hereof.
"Tranche C Term Loans" shall mean the loans provided for by
Section 2.01(d) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Transaction Documents" shall mean the Ancillary Documents and
the Basic Documents.
"Type" shall have the meaning assigned that term in Section
1.03 hereof.
"U.S. Person" shall mean a citizen or resident of the United
States of America, a corporation, partnership or other entity created or
organized in or under any laws of the United States of America or any State
thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"WDBB" shall mean WDBB-TV, Inc., an Alabama corporation.
"WDBB Options" shall mean (a) the option granted by Cecil
Heftel to the Borrower to acquire 50% of the issued and outstanding stock of H
and P Communications, (b) the option granted by Carl Parmer to the Borrower to
acquire 50% of the issued and outstanding stock of H and P Communications, and
(c) the option granted by D&C, L.L.C. to the Borrower to acquire 10% of the
issued and outstanding stock of WDBB.
Credit Agreement
- 41 -
"WFBC-TV" shall mean WFBC-TV, a television broadcasting
station licensed to Greenville and Spartanburg, South Carolina and Asheville,
North Carolina and serving the Greenville, Spartanburg and Asheville areas.
"Working Investment" shall mean, as at any date of
determination thereof and for any Person, the excess of (a) the unpaid face
amount of all accounts receivable of such Person as at such date over (b) the
sum (determined without duplication) of (i) the unpaid amount of all accounts
payable of such Person at such date plus (ii) all accrued expenses of such
Person at such date (but excluding from accounts payable and accrued expenses,
the current portion of long-term debt and of Film Obligations as well as all
accrued interest and taxes).
"WPTT" shall mean WPTT, Inc., a Maryland corporation.
"WPTT Conversion Option" shall mean the Option Agreement dated
as of August 30, 1991 between WPTT and the Borrower (as successor by merger to
Commercial Radio Institute, Inc.), as the same may be modified and supplemented
and in effect from time to time.
"WPTT Convertible Debenture" shall mean the WPTT, Inc. 20-Year
Eight and One-Half Percent (8.5%) Convertible Subordinate Debenture Due 2011
dated August 30, 1991, payable by WPTT to the Borrower (as successor by merger
to Commercial Radio Institute, Inc.) in the original principal amount of
$1,000,000.
"WSTR Note" shall mean the Amended and Restated 8.5%
Subordinated Promissory Note originally issued as of November 6, 1989 and
amended and restated as of June 25, 1992 in the original principal amount of
$6,000,000 payable by Cincinnati TV 64 to United Cable Television Financing
Corporation, as the same shall be amended and supplemented and in effect from
time to time.
"WSTR Option" shall mean the Option Agreement dated as of May
24, 1994 between Cincinnati TV 64 and the Borrower or any of its Subsidiaries
(as assignee of the Smith Brothers) providing for the grant by Cincinnati TV 64
to the Borrower or such Subsidiary of an option to acquire the Properties
relating to WSTR-TV referred to therein as "Station Assets" and to assume the
liabilities relating to WSTR-TV referred to therein as "Assumed Liabilities", as
the same may be modified and supplemented and in effect from time to time.
"WSTR-TV" shall mean WSTR-TV, a television broadcasting
station licensed to Cincinnati, Ohio and serving the Cincinnati area.
Credit Agreement
- 42 -
"WSYX Acquisition" shall mean, with respect the "Columbus
Station" referred to in the Columbus Option Agreement, the acquisition by the
Borrower or any of its Subsidiaries, upon its exercise of the option granted
under the Columbus Option Agreement with respect to the Columbus Station, of the
"Columbus Station Assets" referred to in the Columbus Option Agreement used or
held for use by the River City Sellers with respect to the Columbus Station and
the assumption by the Borrower or such Subsidiary of the "Assumed Liabilities"
referred to in the Columbus Option Agreement with respect to the Columbus
Station, all in accordance with terms and conditions of the Columbus Option
Agreement and shall include, if no Default has occurred and is continuing at the
time of the making of the payment thereof, (a) the payment by the Borrower or
such Subsidiary of WSYX Option Extension Payments and (b) the payment of the
WSYX Sale Price Differential.
"WSYX Option Extension Payments" shall mean each "Option
Extension Fee" payable by the Borrower or any of its Subsidiaries under Section
2.1(b) of the Columbus Option Agreement.
"WSYX Sale Price Differential" shall mean the amount payable
by the Borrower or any of its Subsidiaries under Section 11.1.C(b) of the
Columbus Option Agreement.
"WTTE-TV" shall mean WTTE-TV, Channel 28, a television
broadcasting station, licensed to Columbus, Ohio and serving the Columbus area.
"WYZZ Acquisition" shall mean the acquisition by the Borrower
or any of its Subsidiaries in accordance with the terms hereof of substantially
all of the assets (including, without limitation, the Broadcast Licenses)
relating to WYZZ-TV, a television broadcast station licensed to
Peoria/Bloomington, Illinois and serving the Peoria/Bloomington area.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with that used in the preparation of
the latest financial statements furnished to the Lenders hereunder (which, prior
to the first financial statements delivered under Section 9.01 hereof, shall
Credit Agreement
- 43 -
mean the financial statements referred to in Section 8.02 hereof). All
calculations made for the purposes of determining compliance with the terms of
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with that used in the preparation of the annual or quarterly
financial statements furnished to the Lenders pursuant to Section 9.01 hereof
(or, prior to the first financial statements delivered under Section 9.01
hereof, used in the preparation of the financial statements referred to in
Section 8.02 hereof) unless (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements or (ii) the Majority Lenders shall so object in writing within 30
days after delivery of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 9.01 hereof, shall mean the
financial statements referred to in Section 8.02 hereof).
(b) The Borrower shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
9.01 hereof a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above, and reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9 hereof, the Borrower will
not change the last day of its fiscal year from December 31 of each year, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30 of each year, respectively.
(d) Except as expressly provided herein, all calculations made
with respect to any period during which an Acquisition is consummated shall be
calculated on a pro forma basis as if such Acquisition had been consummated on
the first day of such period and as if any Indebtedness incurred or assumed in
connection with such Acquisition were outstanding throughout such period, using
such reasonable estimates and pro forma adjustments effected in accordance with
generally accepted
Credit Agreement
- 44 -
accounting principles as the Borrower shall propose and the Agent and at least
one Managing Agent shall approve.
1.03 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is (a) a Revolving Credit
Loan, (b) a Tranche A Term Loan, (c) a Tranche B Term Loan or (d) a Tranche C
Term Loan, each of which constitutes a Class. The "Type" of a Loan refers to
whether such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
1.04 References to Date. All references herein to "the date
hereof" and "the date of this Agreement", and similar references, shall mean May
31, 1996.
Section 2. Commitments.
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make loans
to the Borrower in Dollars during the period from and including the Restatement
Effective Date to but excluding the Revolving Credit Commitment Termination Date
in an aggregate principal amount at any one time outstanding up to but not
exceeding the amount of the Revolving Credit Commitment of such Revolving Credit
Lender as in effect from time to time minus the aggregate amount of such
Revolving Credit Lender's Letter of Credit Liabilities; provided that there
shall remain unused Revolving Credit Commitments in an aggregate amount of not
less than $15,000,000 until the date that one (but not both) of KSMO- TV and
WSTR-TV become Owned Stations pursuant to the exercise of the KSMO Option or the
WSTR Option, as the case may be, and thereafter there shall remain unused
Revolving Credit Commitments in an aggregate amount of not less than $7,500,000
until the date that both of KSMO-TV and WSTR-TV have become Owned Stations
pursuant to the exercise of the KSMO Option and the WSTR Option. Subject to the
terms and conditions of this Agreement, during such period the Borrower may
borrow, repay and reborrow the amount of the Revolving Credit Commitments by
means of Base Rate Loans and Eurodollar Loans and may Convert Revolving Credit
Loans of one Type into Revolving Credit Loans of another Type (as provided in
Section 2.08 hereof) or Continue Revolving Credit Loans of one Type as Revolving
Credit Loans of the same Type (as provided in Section 2.08 hereof).
(b) Tranche A Term Loans.
Credit Agreement
- 45 -
(i) On the Restatement Effective Date, (x) each Tranche A
Lender severally agrees, on the terms and conditions of this Agreement,
to make a single term loan to the Borrower in Dollars on the
Restatement Effective Date in a principal amount equal to the amount of
the Tranche A Term Loan Commitment of such Tranche A Lender, (y) the
Borrower shall borrow such loans and use the proceeds thereof (A)
first, immediately to prepay in full the principal amount of the
Existing Facility B Revolving Credit Loans then outstanding, (B)
second, to pay all accrued and unpaid interest on the Existing Facility
B Revolving Credit Loans so prepaid and any amounts payable under
Section 5.05 of the Existing Credit Agreement in connection with such
prepayment and (C) third, for other uses permitted by Section 9.21
hereof.
(ii) After the Restatement Effective Date, subject to the terms and
conditions of this Agreement, the Borrower may Convert Tranche A Term
Loans of one Type into Tranche A Term Loans of another Type (as
provided in Section 2.08 hereof) or Continue Tranche A Term Loans of
one Type as Tranche A Term Loans of the same Type (as provided in
Section 2.08 hereof). Tranche A Term Loans that are prepaid may not be
reborrowed.
(c) Tranche B Term Loans. Each Tranche B Lender severally
agrees, on the terms and conditions of this Agreement, to make a single term
loan to the Borrower in Dollars on the Restatement Effective Date in a principal
amount equal to the amount of the Tranche B Term Loan Commitment of such Tranche
B Lender. Thereafter, subject to the terms and conditions of this Agreement, the
Borrower may Convert Tranche B Term Loans of one Type into Tranche B Term Loans
of another Type (as provided in Section 2.08 hereof) or Continue Tranche B Term
Loans of one Type as Tranche B Term Loans of the same Type (as provided in
Section 2.08 hereof). Tranche B Term Loans that are prepaid may not be
reborrowed.
(d) Tranche C Term Loans. The Borrower and all or certain of
the Lenders may, with the consent of the Agent, at any one time during the
period from and including the Restatement Effective Date to but excluding the
Tranche C Term Loan Commitment Termination Date agree that such Lenders shall
become Tranche C Lenders by executing and delivering to the Agent a Tranche C
Term Loan Activation Notice specifying the respective Tranche C Term Loan
Commitments of the Tranche C Lenders, the Tranche C Term Loan Activation Date,
the rate of commitment fee, if any, payable by the Borrower in respect of the
Tranche C Term Loan Commitments, the Applicable Margin for Tranche C Term Loans
and otherwise duly completed. Each Tranche C Lender severally
Credit Agreement
- 46 -
agrees, on the terms and conditions of this Agreement, to make one or more term
loans to the Borrower in Dollars during the period from and including the
Tranche C Term Loan Activation Date to but excluding the Tranche C Term Loan
Commitment Termination Date in an aggregate principal amount up to but not
exceeding the amount of the Tranche C Term Loan Commitment of such Tranche C
Lender as in effect from time to time, provided that in no event shall the
proceeds of the Tranche C Term Loans be used for any purpose other than to
finance the consummation of the WSYX Acquisition and Other Acquisitions and
transaction expenses in connection therewith. Thereafter, subject to the terms
and conditions of this Agreement, the Borrower may Convert Tranche C Term Loans
of one Type into Tranche C Term Loans of another Type (as provided in Section
2.08 hereof) or Continue Tranche C Term Loans of one Type as Tranche C Term
Loans of the same Type (as provided in Section 2.08 hereof). Tranche C Term
Loans that are prepaid may not be reborrowed. Nothing in this Section 2.01(d)
shall be construed to obligate any Lender to execute a Tranche C Term Loan
Activation Notice.
(e) Limitation on Eurodollar Loans. No more than ten separate
interest periods in respect of Eurodollar Loans of a Class may be outstanding at
any one time, provided that prior to June 30, 1996, or such earlier date agreed
to in writing by the Agent, all Eurodollar Loans of any Class must have an
Interest Period of one month's duration and be coterminous with the Interest
Periods of all other Eurodollar Loans of such Class, and, to the extent that
prior to such date a Eurodollar Loan would not satisfy such conditions, such
Loan shall be made as or Converted into a Base Rate Loan.
2.02 Borrowings. The Borrower shall give the Agent notice of
each borrowing hereunder as provided in Section 4.05 hereof. Not later than 1:00
p.m. New York time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to the Agent, at an account designated by the Agent, in immediately
available funds, for account of the Borrower. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by depositing the same, in immediately available
funds, in an account of the Borrower maintained with Chase at its principal
office designated by the Borrower.
2.03 Changes of Commitments.
(a) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced to zero at the close of business on the Revolving
Credit Commitment Termination Date. In addition, the aggregate amount of the
Revolving Credit
Credit Agreement
- 47 -
Commitments shall be automatically reduced at the opening of business on each
Revolving Credit Commitment Reduction Date set forth in column (A) below to the
amount (subject to reduction pursuant to paragraph (d) below) set forth in
column (B) below opposite such Revolving Credit Commitment Reduction Date:
(A) (B)
Revolving Credit Commitment Revolving Credit Commitment
Reduction Date Falling on or Reduced to the Following
Nearest to: Amounts ($):
----------- ------------
March 31, 1999 $243,750,000
June 30, 1999 $237,500,000
September 30, 1999 $231,250,000
December 31, 1999 $225,000,000
March 31, 2000 $218,750,000
June 30, 2000 $212,500,000
September 30, 2000 $206,250,000
December 31, 2000 $200,000,000
March 31, 2001 $190,625,000
June 30, 2001 $181,250,000
September 30, 2001 $171,875,000
December 31, 2001 $162,500,000
March 31, 2002 $153,125,000
June 30, 2002 $143,750,000
September 30, 2002 $134,375,000
December 31, 2002 $125,000,000
March 31, 2003 $ 93,750,000
June 30, 2003 $ 62,500,000
September 30, 2003 $ 31,250,000
November 30, 2003 $ 0
(b) The Borrower shall have the right at any time or from time
to time (i) to terminate or to reduce the aggregate unused amount of the Tranche
A Term Loan Commitments, the Tranche B Term Loan Commitments or the Tranche C
Term Loan Commitments, (ii) so long as no Revolving Credit Loans or Letter of
Credit Liabilities are outstanding, to terminate the Revolving Credit
Commitments and (iii) to reduce the aggregate unused amount of
Credit Agreement
- 48 -
the Revolving Credit Commitments (for which purpose use of the Revolving Credit
Commitments shall be deemed to include Letter of Credit Liabilities); provided
that (i) the Borrower shall give notice of each such termination or reduction as
provided in Section 4.05 hereof and (ii) each partial reduction shall be in an
aggregate amount at least equal to $5,000,000 and in integral multiples of
$1,000,000 in excess thereof.
(c) The Commitments shall automatically reduce as provided in
Section 2.09 hereof.
(d) Each reduction in the aggregate amount of the Revolving
Credit Commitments pursuant to paragraph (b) above, or pursuant to Section 2.09
hereof, on any date shall result in an automatic and simultaneous reduction (but
not below zero) in the aggregate amount of the Revolving Credit Commitments for
each Revolving Credit Commitment Reduction Date (as reflected in column (B) at
the end of paragraph (a) above) after such date in an amount equal to the amount
of such reduction.
(e) The aggregate amount of the Tranche A Term Loan
Commitments shall be automatically reduced to zero at the close of business on
the Restatement Effective Date.
(f) The aggregate amount of the Tranche B Term Loan
Commitments shall be automatically reduced to zero at the close of business on
the Restatement Effective Date.
(g) The aggregate amount of the Tranche C Term Loan
Commitments shall be automatically reduced to zero at the close of business on
the Tranche C Term Loan Commitment Termination Date.
(h) The Commitments once terminated or reduced may not be
reinstated.
2.04 Commitment Fees.
(a) The Borrower shall pay to the Agent for account of each
Revolving Credit Lender a commitment fee on the daily average unused amount of
such Revolving Credit Lender's Revolving Credit Commitment (for which purpose
the aggregate amount of any Letter of Credit Liabilities shall be deemed to be a
pro rata (based on the Revolving Credit Commitments) use of each Revolving
Credit Lender's Revolving Credit Commitment), for the period from and including
the date of this Agreement to but not including the earlier of the date such
Revolving Credit Commitment is terminated and the Revolving Credit Commitment
Termination Date, at a rate per annum equal to Applicable Commitment Fee Rate.
Credit Agreement
- 49 -
(b) The Borrower shall pay to the Agent for account of each
Tranche C Lender a commitment fee on the daily average unused amount of such
Tranche C Lender's Tranche C Term Loan Commitment, for the period from and
including the Tranche C Term Loan Activation Date to but not including the
earlier of the date such Tranche C Term Loan Commitment is terminated and the
Tranche C Term Loan Commitment Termination Date, at a rate per annum equal to a
rate agreed to by the Borrower and the Tranche C Lenders and specified in the
Tranche C Term Loan Activation Notice.
(c) Accrued commitment fee shall be payable on each Quarterly
Date and on the earlier of the date the relevant Commitment is terminated and
either the Revolving Credit Commitment Termination Date or the Tranche C Term
Loan Commitment Termination Date, as the case may be.
2.05 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
2.06 Several Obligations; Remedies Independent. The failure of
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but (a) neither any Lender nor the Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender and
(b) no Lender shall have an obligation to any other Lender in respect of its
obligation to make any Loan hereunder. The amounts payable by the Borrower to
each Lender at any time hereunder and under the Note(s) payable to such Lender
shall be a separate and independent debt and such Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and such Note(s),
and it shall not be necessary for any other Lender or the Agent to consent to,
or be joined as an additional party in, any proceedings for such purposes.
2.07 Notes.
(a) The Revolving Credit Loans (other than Registered Loans)
made by each Revolving Credit Lender shall be evidenced by a single promissory
note of the Borrower substantially in the form of Exhibit A-1 hereto, dated the
date hereof, payable to such Revolving Credit Lender in a principal amount equal
to the amount of its Revolving Credit Commitment as originally in effect and
otherwise duly completed.
(b) The Tranche A Term Loan (other than Registered Loans) made
by each Tranche A Lender shall be evidenced by a single promissory note of the
Borrower substantially in the form
Credit Agreement
- 50 -
of Exhibit A-2 hereto, dated the date hereof, payable to such Tranche A Lender
in a principal amount equal to the original amount of its Tranche A Term Loan
Commitment and otherwise duly completed.
(c) The Tranche B Term Loan (other than Registered Loans) made
by each Tranche B Lender shall be evidenced by a single promissory note of the
Borrower substantially in the form of Exhibit A-3 hereto, dated the date hereof,
payable to such Tranche B Lender in a principal amount equal to the original
amount of its Tranche B Term Loan Commitment and otherwise duly completed.
(d) The Tranche C Term Loans (other than Registered Loans)
made by each Tranche C Lender shall be evidenced by a single promissory note of
the Borrower substantially in the form of Exhibit A-4 hereto, dated the Tranche
C Term Loan Activation Date, payable to such Tranche C Lender in a principal
amount equal to the original amount of its Tranche C Term Loan Commitment and
otherwise duly completed.
(e) The date, amount, Type, interest rate, and duration of
Interest Period (if applicable) of each Loan made by each Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of the Note
evidencing such Loan, endorsed by such Lender on the schedule attached to such
Note or any continuation thereof; provided that the failure of such Lender to
make any such recordation (or any error in making any such recordation) or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing hereunder or under such Note in respect of such
Loans.
(f) No Lender shall be entitled to have its Notes substituted
or exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's relevant Commitment(s), Loan(s) or Note(s) pursuant to
Section 12.06(b) hereof and except as provided in clause (g) below (and, if
requested by any Lender, the Borrower agrees to so exchange any Note).
(g) Notwithstanding the foregoing, any Lender that is not a
U.S. Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code may request the Borrower (through the Agent), and the Borrower agrees
thereupon, to record on the Register referred to in Section 12.06(g) hereof any
Loans of any Class held by such Lender under this Agreement. Loans recorded on
the Register ("Registered Loans") may not be
Credit Agreement
- 51 -
evidenced by promissory notes other than Registered Notes as defined below and,
upon the registration of any Loan, any promissory note (other than a Registered
Note) evidencing the same shall be null and void and shall be returned to the
Borrower. The Borrower agrees, at the request of any Lender that is the holder
of Registered Loans, to execute and deliver to such Lender a promissory note in
registered form to evidence each such Registered Loan (i.e. containing the
optional registered note language as indicated in Exhibits A-1, A-2, A-3 or A-4
hereto, as the case may be) and registered as provided in Section 12.06(g)
hereof (herein, a "Registered Note"), dated (i) the date hereof if such
promissory note evidences Loans of any Class other than Tranche C Term Loans or
(ii) the Tranche C Term Loan Activation Date if such promissory note evidences
Tranche C Term Loans, in each case payable to such Lender and otherwise duly
completed. A Loan once recorded on the Register may not be removed from the
Register so long as it remains outstanding and a Registered Note may not be
exchanged for a promissory note that is not a Registered Note.
2.08 Optional Prepayments and Conversions or Continuations of
---------------------------------------------------------
Loans.
- -----
(a) Subject to Section 4.04(a) hereof, the Borrower shall have
the right to prepay Loans, or to Convert Loans of one Type into Loans of another
Type or Continue Loans of one Type as Loans of the same Type, at any time or
from time to time, provided that: (i) the Borrower shall give the Agent notice
of each such prepayment, Conversion or Continuation as provided in Section 4.05
hereof (and, upon the date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder); (ii) Eurodollar
Loans may be prepaid or Converted only on the last day of an Interest Period for
such Loans; and (iii) prepayments of Tranche A Term Loans, Tranche B Terms Loans
or Tranche C Term Loans under this Section 2.08(a) shall be applied to each of
such Classes of Loans (x) as between such Classes of Loans, pro rata in
accordance with the respective aggregate principal amounts thereof outstanding
on the date of prepayment and (y) as within such Classes of Loans, to the
respective installments thereof in the inverse order of their maturities.
(b) Notwithstanding anything contained herein to the contrary,
and without limiting the rights and remedies of the Lenders under Section 10
hereof, in the event that any Event of Default shall have occurred and be
continuing, the Agent may (and at the request of the Majority Lenders shall)
suspend the right of the Borrower to Convert any Loan into a Eurodollar Loan, or
to Continue any Loan as a Eurodollar Loan, in which event all Loans shall be
Converted (on the last day(s) of the respective Interest
Credit Agreement
- 52 -
Periods therefor) or Continued, as the case may be, as Base Rate Loans.
2.09 Mandatory Prepayments and Reductions of Commitments.
---------------------------------------------------
(a) Casualty Events. Upon the date 90 days following the
receipt by the Borrower of the proceeds of insurance, condemnation award or
other compensation in respect of any Casualty Event affecting any Property of
the Borrower or any of its Subsidiaries or any Contract Station (or upon such
earlier date as the Borrower or such Subsidiary of the Borrower shall have
determined not to repair or replace the Property affected by such Casualty
Event), the Borrower shall prepay the Loans (and/or provide cover for Letter of
Credit Liabilities as specified in clause (f) below), and the Commitments shall
be subject to automatic reduction, in an aggregate amount, if any, equal to 100%
of the Net Available Proceeds of such Casualty Event not theretofore applied to
the repair or replacement of such Property, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in clause (e) of
this Section 2.09. Notwithstanding the foregoing, in the event that a Casualty
Event shall occur with respect to Property covered by the Mortgage(s), the
Borrower shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in clause (f) below), and the Commitments shall be
subject to automatic reduction, on the dates, and in the amounts of the required
prepayments, specified in the Mortgage(s), if any. Nothing in this clause (a)
shall be deemed to limit any obligation of the Borrower or any of its
Subsidiaries pursuant to any of the Security Documents to remit to a collateral
or similar account maintained by the Agent pursuant to any of the Security
Documents (including, without limitation, the Collateral Account) the proceeds
of insurance, condemnation award or other compensation received in respect of
any Casualty Event.
(b) Issuance of Equity or Debt.
--------------------------
(i) Upon any Equity Issuance by the Borrower permitted
hereunder (other than the issuance by the Borrower of the Preferred
Stock or the In-Kind Preferred Stock, the conversion of the Preferred
Stock or the In-Kind Preferred Stock into the Borrower's Class A Common
Stock and any Equity Issuance made pursuant to the Columbus Option
Agreement), the Borrower shall prepay the Loans (and/or provide cover
for Letter of Credit Liabilities as specified in clause (f) below), and
the Commitments shall be subject to automatic reduction, in an
aggregate amount equal to 80% of such portion of the Net Available
Proceeds thereof not applied as permitted by Section 9.26(c)(iii)(x),
(y) and (z)
Credit Agreement
- 53 -
hereof, such prepayment and reduction to be effected in each case in
the manner and to the extent specified in clause (e) of this Section
2.09.
(ii) Upon the issuance by the Borrower of the Preferred Stock, the
Borrower shall prepay the Revolving Credit Loans (and/or provide cover
for Letter of Credit Liabilities as specified in clause (f) below) (but
the Revolving Credit Commitments shall not be subject to automatic
reduction) in an aggregate amount equal to the Net Available Proceeds
thereof.
(iii) Upon the issuance of any Additional Senior Subordinated
Notes, the Borrower shall prepay the Loans (and/or provide cover for
Letter of Credit Liabilities as specified in clause (f) below), and the
Commitments shall be subject to automatic reduction, in an aggregate
amount equal to such portion of 100% of the Net Available Proceeds
thereof not applied as permitted by Section 9.07(c)(v)(x) hereof (the
"Available Prepayment Amount"), such prepayment and reduction to be
effected in the manner and to the extent specified in clause (e) of
this Section 2.09.
(c) Excess Cash Flow. Not later than the date 110 days after
the end of each fiscal year of the Borrower that ends in 1996 or thereafter, the
Borrower shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in clause (f) below), and Commitments shall be subject
to automatic reduction, in an aggregate amount equal to the excess of (i)
66-2/3% of Excess Cash Flow (as reported upon by independent certified public
accountants of recognized national standing on or before said date) for such
fiscal year (or in the case of the fiscal year of the Borrower that ends in
1996, for the third and fourth fiscal quarters of such fiscal year) over (ii)
the sum of (x) the aggregate amount of prepayments of Tranche A Term Loans,
Tranche B Term Loans and Tranche C Term Loans made during such fiscal year (or
such fiscal quarters, as the case may be) pursuant to Section 2.08 hereof plus
(y) (if the Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans
shall have been paid or prepaid in full during such fiscal year) the aggregate
amount of the reductions of the Revolving Credit Commitments made during such
calendar year pursuant to Section 2.03(b) hereof, such prepayment and reduction
to be effected in each case in the manner and to the extent specified in clause
(e) of this Section 2.09.
(d) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Majority Lenders pursuant to Section 9.05
hereof to any Disposition not otherwise permitted hereunder, in the event that
the Net Available Proceeds
Credit Agreement
- 54 -
of any Disposition (herein, the "Current Disposition"), and of all prior
Dispositions as to which a prepayment has not yet been made under this Section
2.09(d), but in all events excluding Excluded Net Available Proceeds (as defined
below), shall exceed $1,000,000 then, no later than five Business Days prior to
the occurrence of the Current Disposition, the Borrower will deliver to the
Lenders a statement, certified by a senior financial officer of the Borrower, in
form and detail satisfactory to the Agent, of the amount of the Net Available
Proceeds of the Current Disposition and of all such prior Dispositions and,
concurrently with the consummation of the Current Disposition, will prepay the
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
clause (f) below), and the Commitments shall be subject to automatic reduction,
in an aggregate amount equal to 100% of the Net Available Proceeds of the
Current Disposition and such prior Dispositions, such prepayment and reduction
to be effected in each case in the manner and to the extent specified in clause
(e) of this Section 2.09. For purposes of this Section 2.09(d) "Excluded Net
Available Proceeds" shall mean (without duplication) (i) the first $250,000 of
Net Available Proceeds from Dispositions received by the Borrower and its
Subsidiaries in each of the Borrower's fiscal years, (ii) the proceeds of any
Disposition of the WSTR Note and (iii) the Net Available Proceeds of any
Disposition made pursuant to Section 9.05(d)(iv)(x) if, within twelve months
following the receipt by the Borrower or any of its Subsidiaries of such Net
Available Proceeds, (x) the Borrower or any of its Subsidiaries shall have
entered into one or more acquisition agreements providing for the Acquisition by
the Borrower or any of its Subsidiaries of one or more radio broadcasting
stations as permitted hereby and (y) the transfer of control to the Borrower or
any of its Subsidiaries of the Broadcast Licenses relating to such radio
broadcasting stations shall have been approved by Initial FCC Orders; provided
that if (A) the cash purchase price payable by the Borrower or any such
Subsidiary in connection with all such Acquisitions shall be less than the
amount of such Net Available Proceeds or (B) any such Acquisition shall fail to
have been consummated by reason of (1) the relevant Initial FCC Order having
been revoked, rescinded, cancelled or otherwise ceasing to be in full force and
effect for any reason, (2) the relevant acquisition agreement having expired,
been terminated or cancelled, or otherwise ceasing to be in full force and
effect for any reason or (3) the failure of the Borrower or any of its
Subsidiaries to consummate any such Acquisition not later than 30 days after the
transfer of control to the Borrower or such Subsidiary of the Broadcast Licenses
relating to the relevant radio broadcasting station having been approved by a
Final FCC Order, then the Borrower shall, promptly upon the execution of all
such agreements (in the case of the foregoing clause (A)) or upon such failure
(in the case of the foregoing clause (B)), prepay Loans (and/or provide cover
for
Credit Agreement
- 55 -
Letter of Credit Liabilities as specified in clause (f) below) and reduce the
Commitments in the manner and to the extent specified in clause (e) below in an
aggregate amount equal to the excess of such Net Available Proceeds over the
aggregate amount of such cash purchase prices (in the case of the foregoing
clause (A)) or the amount of the cash purchase price for such failed Acquisition
(in the case of the foregoing clause (B)).
(e) Application. Any amount (the "Applicable Amount") required
to be applied to prepay Loans or reduce Commitments as provided in the foregoing
clauses of this Section 2.09 shall be effected (except as expressly set forth
above) as follows:
(i) first, the Borrower shall prepay the Tranche A Term Loans,
Tranche B Term Loans and Tranche C Term Loans in an aggregate amount
equal to the Applicable Amount, such prepayment to be applied (x) as
between such Classes of Loans, pro rata in accordance with the
respective aggregate principal amounts thereof outstanding on the date
of prepayment (as calculated after giving effect to all other payments
and prepayments of principal of such Loans on such date) and (y) as
within each such Class of Loans, to the respective installments thereof
in the inverse order of their maturities;
(ii) second, the Tranche C Term Loan Commitments shall be
automatically reduced by an amount equal to any excess of the
Applicable Amount over the aggregate principal amount of Loans prepaid
pursuant to the foregoing clause (i); and
(iii) third, the Revolving Credit Commitments shall be automatically
reduced by an amount equal to any excess of the Applicable Amount over
the aggregate principal amount of Loans prepaid and Commitments reduced
pursuant to the foregoing clauses (i) and (ii), and to the extent that,
after giving effect to such reduction, the aggregate principal amount
of Revolving Credit Loans, together with the aggregate amount of all
Letter of Credit Liabilities, would exceed the Revolving Credit
Commitments, the Borrower shall, first, prepay Revolving Credit Loans
and, second, provide cover for Letter of Credit Liabilities as
specified in clause (f) below, in an aggregate amount equal to such
excess.
(f) Cover for Letter of Credit Liabilities. In the event that
the Borrower shall be required pursuant to this Section 2.09 or Section 3.01(a)
hereof to provide cover for Letter of Credit Liabilities, the Borrower shall
effect the same by paying to the Agent immediately available funds in an amount
equal to the required amount, which funds shall be retained by
Credit Agreement
- 56 -
the Agent in the Collateral Account (as provided therein as collateral security
for the Letter of Credit Liabilities) until such time as the Letters of Credit
shall have been terminated and all of the Letter of Credit Liabilities paid in
full.
2.10 Issuance of Letters of Credit. Subject to the terms and
conditions of this Agreement, the Revolving Credit Commitments may be utilized
prior to the Revolving Credit Commitment Termination Date, upon the request of
the Borrower, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Bank of letters of credit (each,
a "Letter of Credit") for account of the Borrower or any of its Subsidiaries (as
specified by the Borrower), provided that in no event shall (i) the aggregate
amount of all Letter of Credit Liabilities, together with the aggregate
principal amount of the Revolving Credit Loans, exceed the aggregate amount of
the Revolving Credit Commitments as in effect from time to time, (ii) the
outstanding aggregate amount of all Letter of Credit Liabilities exceed
$50,000,000 and (iii) the expiration date of any Letter of Credit extend beyond
the Revolving Credit Commitment Termination Date. The following additional
provisions shall apply to Letters of Credit:
(a) The Borrower shall give the Agent at least five Business
Days' irrevocable prior notice (effective upon receipt) specifying the
Business Day (which shall be no later than 30 days preceding the
Revolving Credit Commitment Termination Date) on which each Letter of
Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of
Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or
a standby letter of credit). Upon receipt of any such notice, the Agent
shall advise the Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the issuance
by the Issuing Bank of such Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Revolving Credit
Commitment of each Revolving Credit Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the
then undrawn face amount of such Letter of Credit. Each Revolving
Credit Lender (other than the Issuing Bank) agrees that, upon the
issuance of any Letter of Credit hereunder, it shall automatically
acquire a participation in the Issuing Bank's liability under such
Letter of Credit in an amount equal to such Revolving Credit
Credit Agreement
- 57 -
Lender's Revolving Credit Commitment Percentage of such liability, and
each Revolving Credit Lender (other than the Issuing Bank) thereby
shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to
the Issuing Bank to pay and discharge when due, its Revolving Credit
Commitment Percentage of the Issuing Bank's liability under such Letter
of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit
of any demand for payment under such Letter of Credit, the Issuing Bank
shall promptly notify the Borrower (through the Agent) of the amount to
be paid by the Issuing Bank as a result of such demand and the date on
which payment is to be made by the Issuing Bank to such beneficiary in
respect of such demand. Notwithstanding the identity of the account
party of any Letter of Credit, the Borrower hereby unconditionally
agrees to pay and reimburse the Agent for account of the Issuing Bank
for the amount of each demand for payment under such Letter of Credit
at or prior to the date on which payment is to be made by the Issuing
Bank to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in
clause (c) of this Section 2.10, the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Issuing Bank for the amount of the related
demand for payment and, if it does, submit a notice of such borrowing
as provided in Section 4.05 hereof. In the event that the Borrower
fails to so advise the Agent, or if the Borrower fails to reimburse the
Issuing Bank for a payment under a Letter of Credit by the date of such
payment, the Agent shall give each Revolving Credit Lender prompt
notice of the amount of the demand for payment, specifying such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the
amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Bank)
shall pay to the Agent for account of the Issuing Bank at the Agent's
principal office in Dollars and in immediately available funds, the
amount of such Revolving Credit Lender's Revolving Credit Commitment
Percentage of any payment under a Letter of Credit upon notice by the
Issuing Bank (through the Agent) to such Revolving Credit Lender
requesting such payment and specifying such amount. Each such Revolving
Credit Lender's obligation to make such payment to the Agent for
account of the Issuing Bank under
Credit Agreement
- 58 -
this clause (e), and the Issuing Bank's right to receive the same,
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of
any other Revolving Credit Lender to make its payment under this clause
(e), the financial condition of the Borrower (or any other account
party), the existence of any Default or the termination of the
Revolving Credit Commitments. Each such payment to the Issuing Bank
shall be made without any offset, abatement, withholding or reduction
whatsoever. If any Revolving Credit Lender shall default in its
obligation to make any such payment to the Agent for account of the
Issuing Bank, for so long as such default shall continue the Agent may
at the request of the Issuing Bank withhold from any payments received
by the Agent under this Agreement or any Note for account of such
Revolving Credit Lender the amount so in default and, to the extent so
withheld, pay the same to the Issuing Bank in satisfaction of such
defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit
Lender to the Issuing Bank pursuant to clause (e) above in respect of
any Letter of Credit, such Revolving Credit Lender shall, automatically
and without any further action on the part of the Agent, the Issuing
Bank or such Revolving Credit Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation owing to
the Issuing Bank by the Borrower hereunder and under the Letter of
Credit Documents relating to such Letter of Credit and (ii) a
participation in a percentage equal to such Revolving Credit Lender's
Revolving Credit Commitment Percentage in any interest or other amounts
payable by the Borrower hereunder and under such Letter of Credit
Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the Issuing Bank
pursuant to clause (g) of this Section 2.10). Upon receipt by the
Issuing Bank from or for account of the Borrower of any payment in
respect of any Reimbursement Obligation or any such interest or other
amount (including by way of setoff or application of proceeds of any
collateral security) the Issuing Bank shall promptly pay to the Agent
for account of each Revolving Credit Lender entitled thereto, such
Revolving Credit Lender's Revolving Credit Commitment Percentage of
such payment, each such payment by the Issuing Bank to be made in the
same money and funds in which received by the Issuing Bank. In the
event any payment received by the Issuing Bank and so paid to the
Revolving Credit Lenders hereunder is rescinded or must otherwise be
returned by the Issuing Bank, each Revolving Credit Lender shall, upon
the request of the Issuing Bank (through the Agent), repay to
Credit Agreement
- 59 -
the Issuing Bank (through the Agent) the amount of such payment paid to
such Revolving Credit Lender, with interest at the rate specified in
clause (j) of this Section 2.10.
(g) The Borrower shall pay to the Agent for account of each
Revolving Credit Lender (ratably in accordance with their respective
Revolving Credit Commitment Percentages) a letter of credit fee in
respect of each Letter of Credit at the rate per annum equal to the
Applicable Margin for Eurodollar Loans on the daily average undrawn
face amount of such Letter of Credit for the period from and including
the date of issuance of such Letter of Credit (i) in the case of a
Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter of
Credit that is drawn in full or is otherwise terminated other than on
the stated expiration date of such Letter of Credit, to but excluding
the date such Letter of Credit is drawn in full or is terminated (such
fee to be non-refundable, to be paid in arrears on each Quarterly Date
and on the Revolving Credit Commitment Termination Date and to be
calculated for any day after giving effect to any payments made under
such Letter of Credit on such day). In addition, the Borrower shall pay
to the Agent for account of the Issuing Bank a fronting fee in respect
of each Letter of Credit in an amount equal to 1/4 of 1% per annum of
the daily average undrawn face amount of such Letter of Credit for the
period from and including the date of issuance of such Letter of Credit
(i) in the case of a Letter of Credit that expires in accordance with
its terms, to and including such expiration date and (ii) in the case
of a Letter of Credit that is drawn in full or is otherwise terminated
other than on the stated expiration date of such Letter of Credit, to
but excluding the date such Letter of Credit is drawn in full or is
terminated (such fee to be non-refundable, to be paid in arrears on
each Quarterly Date and on the Revolving Credit Commitment Termination
Date and to be calculated for any day after giving effect to any
payments made under such Letter of Credit on such day) plus all
commissions, charges, costs and expenses in the amounts customarily
charged by the Issuing Bank from time to time in like circumstances
with respect to the issuance of each Letter of Credit and drawings and
other transactions relating thereto.
(h) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver (through the Agent) to each Revolving Credit
Lender and the Borrower a notice describing the aggregate amount of all
Letters of Credit outstanding at the end of such quarter. Upon the
request of any Revolving Credit Lender from time to time, the Issuing
Credit Agreement
- 60 -
Bank shall deliver any other information reasonably requested by such
Revolving Credit Lender with respect to each Letter of Credit then
outstanding.
(i) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 7
hereof, be subject to the conditions precedent that (i) such Letter of
Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to the Issuing Bank consistent
with its then current practices and procedures with respect to letters
of credit of the same type and (ii) the Borrower shall have executed
and delivered such applications, agreements and other instruments
relating to such Letter of Credit as the Issuing Bank shall have
reasonably requested consistent with its then current practices and
procedures with respect to letters of credit of the same type, provided
that in the event of any conflict between any such application,
agreement or other instrument and the provisions of this Agreement or
any Security Document, the provisions of this Agreement and the
Security Documents shall control.
(j) To the extent that any Revolving Credit Lender shall fail
to pay any amount required to be paid pursuant to clause (e) or (f) of
this Section 2.10 on the due date therefor, such Revolving Credit
Lender shall pay interest to the Issuing Bank (through the Agent) on
such amount from and including such due date to but excluding the date
such payment is made at a rate per annum equal to the Federal Funds
Rate, provided that if such Revolving Credit Lender shall fail to make
such payment to the Issuing Bank within three Business Days of such due
date, then, retroactively to the due date, such Revolving Credit Lender
shall be obligated to pay interest on such amount at the Post-Default
Rate.
(k) The issuance by the Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.10 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (ii) each Revolving Credit Lender shall have consented thereto.
(l) The Borrower hereby indemnifies and holds harmless
each Revolving Credit Lender and the Agent from and against
Credit Agreement
- 61 -
any and all claims and damages, losses, liabilities, costs or expenses
that such Revolving Credit Lender or the Agent may incur (or that may
be claimed against such Revolving Credit Lender or the Agent by any
Person whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by the Issuing
Bank under any Letter of Credit; provided that the Borrower shall not
be required to indemnify any Revolving Credit Lender or the Agent for
any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (x) the willful misconduct or
gross negligence of the Issuing Bank in determining whether a request
presented under any Letter of Credit complied with the terms of such
Letter of Credit or (y) in the case of the Issuing Bank, the Issuing
Bank's failure to pay under any Letter of Credit after the presentation
to it of a request strictly complying with the terms and conditions of
such Letter of Credit unless such payment was enjoined by court order.
Nothing in this Section 2.10 is intended to limit the other obligations
of the Borrower, any Revolving Credit Lender or the Agent under this
Agreement.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
------------------
(a) The Borrower hereby promises to pay to the Agent for
account of each Revolving Credit Lender the entire outstanding principal amount
of such Revolving Credit Lender's Revolving Credit Loans, and each Revolving
Credit Loan shall mature, on the Revolving Credit Commitment Termination Date.
In addition, if the aggregate principal amount of the Revolving Credit Loans,
together with the aggregate amount of all Letter of Credit Liabilities, shall at
any time exceed the Revolving Credit Commitments, the Borrower shall, first, pay
Revolving Credit Loans and, second, provide cover for Letter of Credit
Liabilities as specified in Section 2.09(f) above, in an aggregate amount equal
to such excess.
(b) The Borrower hereby promises to pay to the Agent for
account of each Tranche A Lender the principal of such Tranche A Lender's
Tranche A Term Loan in twenty-five installments payable on the Tranche A
Principal Payment Dates as follows:
Tranche A Principal Payment Date
falling on or nearest to: Amount of Installment ($)
------------------------- -------------------------
December 31, 1996 $30,000,000
March 31, 1997 15,000,000
Credit Agreement
- 62 -
June 30, 1997 15,000,000
September 30, 1997 15,000,000
December 31, 1997 15,000,000
March 31, 1998 17,500,000
June 30, 1998 17,500,000
September 30, 1998 17,500,000
December 31, 1998 17,500,000
March 31, 1999 22,500,000
June 30, 1999 22,500,000
September 30, 1999 22,500,000
December 31, 1999 22,500,000
March 31, 2000 25,000,000
June 30, 2000 25,000,000
September 30, 2000 25,000,000
December 31, 2000 25,000,000
March 31, 2001 25,000,000
June 30, 2001 25,000,000
September 30, 2001 25,000,000
December 31, 2001 25,000,000
March 31, 2002 25,000,000
June 30, 2002 25,000,000
September 30, 2002 25,000,000
December 31, 2002 25,000,000
If the aggregate principal amount of the Tranche A Term Loans made on the
Restatement Effective Date, is less than $550,000,000, the shortfall shall be
applied to reduce the foregoing installments ratably.
(c) The Borrower hereby promises to pay to the Agent for
account of each Tranche B Lender the principal of such Tranche B Lender's
Tranche B Term Loan in twenty-nine installments payable on the Tranche B
Principal Payment Dates as follows:
Tranche B Principal Payment Date
falling on or nearest to: Amount of Installment ($)
------------------------- -------------------------
December 31, 1996 $ 1,500,000
March 31, 1997 375,000
June 30, 1997 375,000
September 30, 1997 375,000
December 31, 1997 375,000
March 31, 1998 375,000
June 30, 1998 375,000
September 30, 1998 375,000
December 31, 1998 375,000
March 31, 1999 375,000
June 30, 1999 375,000
September 30, 1999 375,000
Credit Agreement
- 63 -
December 31, 1999 375,000
March 31, 2000 375,000
June 30, 2000 375,000
September 30, 2000 375,000
December 31, 2000 375,000
March 31, 2001 375,000
June 30, 2001 375,000
September 30, 2001 375,000
December 31, 2001 375,000
March 31, 2002 3,750,000
June 30, 2002 3,750,000
September 30, 2002 3,750,000
December 31, 2002 3,750,000
March 31, 2003 44,000,000
June 30, 2003 44,000,000
September 30, 2003 44,000,000
November 30, 2003 44,000,000
If the aggregate principal amount of the Tranche B Term Loans made on the
Restatement Effective Date, is less than $200,000,000, the shortfall shall be
applied to reduce the foregoing installments ratably.
(d) The Borrower hereby promises to pay to the Agent for
account of each Tranche C Lender the principal of such Tranche C Lender's
Tranche C Term Loan in twenty-six installments payable on the Tranche C
Principal Payment Dates as follows:
Tranche C Principal Payment Date
falling on or nearest to: Amount of Installment ($)
------------------------- -------------------------
September 30, 1997 $ 4,000,000
December 31, 1997 4,000,000
March 31, 1998 2,500,000
June 30, 1998 2,500,000
September 30, 1998 2,500,000
December 31, 1998 2,500,000
March 31, 1999 3,000,000
June 30, 1999 3,000,000
September 30, 1999 3,000,000
December 31, 1999 3,000,000
March 31, 2000 3,500,000
June 30, 2000 3,500,000
September 30, 2000 3,500,000
December 31, 2000 3,500,000
March 31, 2001 4,000,000
June 30, 2001 4,000,000
September 30, 2001 4,000,000
December 31, 2001 4,000,000
March 31, 2002 4,500,000
Credit Agreement
- 64 -
June 30, 2002 4,500,000
September 30, 2002 4,500,000
December 31, 2002 4,500,000
March 31, 2003 30,500,000
June 30, 2003 30,500,000
September 30, 2003 30,500,000
November 30, 2003 30,500,000
If the aggregate principal amount of the Tranche C Term Loans outstanding at the
close of business on the Tranche C Term Loan Commitment Termination Date is less
than $200,000,000, the shortfall shall be applied to reduce the foregoing
installments ratably.
3.02 Interest. The Borrower hereby promises to pay to the
Agent for account of each Lender interest on the unpaid principal amount of each
Loan made by such Lender for the period from and including the date of such Loan
to but excluding the date such Loan shall be paid in full, at the following
rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin
and
(b) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such
Loan for such Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, during any period that a Post- Default Interest
Condition exists (whether or not the same is thereafter cured), the Borrower
hereby promises to pay to the Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such Lender
(whether or not then due), on any Reimbursement Obligation owing to such Lender
and on any other amount then due and payable by the Borrower hereunder or under
the Note(s) held by such Lender. Accrued interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in
the case of a Eurodollar Loan, on the last day of each Interest Period therefor
and, if such Interest Period is longer than three months, at three-month
intervals following the first day of such Interest Period, and (iii) in the case
of any Loan, upon the payment or prepayment thereof or the Conversion of such
Loan to a Loan of another Type (but only on the principal amount so paid,
prepaid or Converted), except that interest payable at the Post-Default Rate
shall be payable from time to time on demand. Promptly after the determination
of any interest rate provided for herein or any change therein, the Agent shall
give
Credit Agreement
- 65 -
notice thereof to the Lenders to which such interest is payable and to the
Borrower.
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.
4.01 Payments.
--------
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Borrower
under this Agreement and the Notes, and, except to the extent otherwise provided
therein, all payments to be made by the Borrower under any other Basic Document,
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Agent at an account designated by the Agent, not
later than 1:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be
made, may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the Borrower
with such Lender (with notice to the Borrower).
(c) The Borrower shall, at the time of making each payment
under this Agreement or any Note, specify to the Agent (which shall so notify
the intended recipient(s) thereof) the Loans, Reimbursement Obligations or other
amounts payable by the Borrower hereunder to which such payment is to be applied
(and in the event that it fails to so specify, or if an Event of Default has
occurred and is continuing, the Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.10(e) hereof, each payment received by the Agent under
this Agreement or any Note for account of any Lender shall be paid by the Agent
promptly to such Lender, in immediately available funds, for account of such
Lender's Applicable Lending Office for the Loan or other obligation in respect
of which such payment is made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day which is not a Business Day such date shall
be extended to the next succeeding
Credit Agreement
- 66 -
Business Day and interest shall be payable for any principal so extended for the
period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein:
(a) each borrowing of Loans of a particular Class from the
Lenders under Section 2.01 hereof shall be made from the relevant
Lenders, each payment of commitment fee under Section 2.04 hereof in
respect of Commitments of a particular Class shall be made for account
of the relevant Lenders, and each termination or reduction of the
amount of the Commitments of a particular Class under Section 2.03
hereof shall be applied to the respective Commitments of such Class of
the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class;
(b) except as otherwise provided in Section 5.04 hereof,
Eurodollar Loans of any Class having the same Interest Period shall be
allocated among the relevant Lenders pro rata according to amounts of
their respective Commitments of such Class (in the case of the making
of Loans) or their respective Loans of such Class (in the case of
Conversions and Continuations of Loans);
(c) each payment or prepayment by the Borrower of principal of
Loans of any Class shall be made for account of the relevant Lenders
pro rata in accordance with the respective unpaid principal amounts of
the Loans of such Class held by them, provided that if immediately
prior to giving effect to any such payment in respect of any Loans of
any Class the outstanding principal amount of the Loans of such Class
shall not be held by the Lenders pro rata according to the amounts of
their respective Commitments of such Class in effect at the time such
Loans were made (by reason of a failure of a Lender to make a Loan
hereunder in the circumstances described in the last paragraph of
Section 12.04 hereof), then such payment shall be applied to the Loans
of such Class in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the Loans of such
Class being held by the relevant Lenders pro rata according to the
amounts of their respective Commitments of such Class; and
(d) each payment by the Borrower of interest on Loans of any
Class shall be made for account of the relevant Lenders pro rata
according to the amounts of interest on such Loans then due and payable
to the respective Lenders.
Credit Agreement
- 67 -
4.03 Computations. Interest on Eurodollar Loans and commitment
fee and letter of credit fees shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but, except as otherwise
provided in Section 2.10(g) hereof, excluding the last day) occurring in the
period for which payable and interest on Base Rate Loans and Reimbursement
Obligations shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable. Notwithstanding the
foregoing, for each day that the Base Rate is calculated by reference to the
Federal Funds Rate, interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.04 Minimum Amounts, Etc.
(a) Except for mandatory prepayments made pursuant to
Section 2.09 hereof and Conversions or prepayments made pursuant to
Section 5.04 hereof, each borrowing, Conversion and partial prepayment
of principal of Loans shall be in an amount at least equal to
$1,000,000 and in integral multiples of $100,000 in excess thereof
(borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of Eurodollar Loans, having different Interest
Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each
Type or Interest Period).
(b) Anything in this Agreement to the contrary
notwithstanding, the aggregate principal amount of Eurodollar Loans
having the same Interest Period shall be in an amount at least equal to
$10,000,000 and in integral multiples of $500,000 in excess thereof
and, if any Eurodollar Loans would otherwise be in a lesser principal
amount for any period, such Loans shall be Base Rate Loans during such
period.
4.05 Certain Notices. Notices by the Borrower to the Agent of
terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans, and of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by the Agent not later than 10:00 a.m. New
York time on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation or prepayment or the
first day of such Interest Period specified below:
Credit Agreement
- 68 -
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of the Commitments 2
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and Class
of the Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or optional prepayment shall specify the Class of Loans
to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04(a) hereof) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day). Each such notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Agent shall promptly notify the Lenders of the contents
of each such notice. In the event that the Borrower fails to select the Type of
Loan, or the duration of any Interest Period for any Eurodollar Loan within the
time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a Eurodollar Loan) will be automatically Converted into a Base
Rate Loan on the last day of the then current Interest Period for such Loan or
(if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Agent. Unless the Agent shall
have been notified by a Lender or the Borrower (the "Payor") prior to the date
on which the Payor is to make payment to the Agent of (in the case of a Lender)
the proceeds of a Loan to be made by it hereunder or (in the case of the
Borrower) a payment to the Agent for account of one or more of the Lenders
hereunder (such payment being herein called the "Required Payment"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date and, if the Payor has not in fact made
Credit Agreement
- 69 -
the Required Payment to the Agent, the recipient(s) of such payment shall, on
demand, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Agent until the date
the Agent recovers such amount at a rate per annum equal to the Federal Funds
Rate for such day and, if such recipient(s) shall fail promptly to make such
payment, the Agent shall be entitled to recover such amount, on demand, from the
Payor, together with interest as aforesaid, provided that if neither the
recipient(s) nor the Payor shall return the Required Payment to the Agent within
three Business Days of the Advance Date, then, retroactively to the Advance
Date, the Payor and the recipient(s) shall each be obligated to pay interest on
the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be
made by the Borrower to the Lenders, the Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of the Borrower under Section
3.02 hereof to pay interest on the Required Payment at the Post-Default
Rate), it being understood that the return by the recipient(s) of the
Required Payment to the Agent shall not limit such obligation of the
Borrower under said Section 3.02 to pay interest at the Post-Default
Rate in respect of the Required Payment, and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to the Borrower, the Payor and the Borrower
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at whichever of the rates
of interest specified in Section 3.02 hereof is applicable to the Type
of such Loan, it being understood that the return by the Borrower of
the Required Payment to the Agent shall not limit any claim the
Borrower may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it or any
of its affiliates for the credit or account of such Obligor at any of its
offices, in Dollars or in any other
Credit Agreement
- 70 -
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness is then due to such Obligor), in which case it shall promptly
notify such Obligor and the Agent thereof, provided that such Lender's failure
to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Reimbursement Obligation
owing to it or payment of any other amount under this Agreement or any Note held
by it or any other Basic Document through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise (other than from the
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
of such Class or Reimbursement Obligations or such other amounts then due
hereunder or thereunder by such Obligor to such Lender than the percentage
received by any other Lenders, it shall promptly purchase from such other
Lenders participations in (or, if and to the extent specified by such Lender,
direct interests in) the Loans of such Class or Reimbursement Obligations or
such other amounts, respectively, owing to such other Lenders (or in interest
due thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such excess payment (net of any expenses
which may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of and/or interest on
the Loans of such Class or such other amounts, respectively, owing to each of
the Lenders, provided that if at the time of such payment the outstanding
principal amount of the Loans of any Class shall not be held by the Lenders pro
rata in accordance with their respective relevant Commitments of such Class in
effect at the time such Loans were made (by reason of a failure of a Lender to
make a Loan hereunder in the circumstances described in the last paragraph of
Section 12.04 hereof), then such purchases of participations and/or direct
interests shall be made in such manner as will result, as nearly as is
practicable, in the outstanding principal amount of the Loans being held by the
Lenders pro rata according to the amounts of such Commitments. To such end all
the Lenders shall make appropriate adjustments among themselves (by the resale
of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(c) The Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights
Credit Agreement
- 71 -
of set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or other
amounts (as the case may be) owing to such Lender in the amount of such
participation (or direct interest).
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
----------------------
5.01 Additional Costs.
----------------
(a) The Borrower shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
it for any costs which such Lender determines are attributable to its making or
maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which:
(i) shall subject any Lender (or its Applicable Lending
Office for any of such Loans) to any tax, duty or other charge in
respect of such Loans or its Note(s) or changes the basis of taxation
of any amounts payable to such Lender under this Agreement or its
Note(s) in respect of any of such Loans (excluding changes in the rate
of tax on the overall net income of such Lender or of its Applicable
Lending Office for any of such Loans by the jurisdiction in which such
Lender has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized in
the determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities
Credit Agreement
- 72 -
of, such Lender (including any of such Loans or any deposits referred
to in the definition of "Eurodollar Base Rate" in Section 1.01 hereof),
or any commitment of such Lender (including the Commitment of such
Lender hereunder); or
(iii) imposes any other condition affecting this Agreement
or its Note(s) (or any of such extensions of credit or liabilities) or
its Commitment.
If any Lender requests compensation from the Borrower under this Section
5.01(a), the Borrower may, by notice to such Lender (with a copy to the Agent),
suspend the obligation of such Lender to make or Continue Eurodollar Loans, or
to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change
giving rise to such request ceases to be in effect (in which case the provisions
of Section 5.04 hereof shall be applicable), provided that such suspension shall
not affect the right of such Lender to receive the compensation so requested.
(b) Without limiting the effect of the provisions of paragraph
(a) of this Section 5.01, in the event that, by reason of any Regulatory Change,
any Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Lender which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender which includes
Eurodollar Loans or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Lender so
elects by notice to the Borrower (with a copy to the Agent), the obligation of
such Lender to make or Continue, or to Convert Base Rate Loans into, Eurodollar
Loans hereunder shall be suspended until such Regulatory Change ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Borrower shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
which it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any
Credit Agreement
- 73 -
risk-based capital guideline or requirement (whether or not having the force of
law and whether or not the failure to comply therewith would be unlawful)
heretofore or hereafter issued by any government or governmental or supervisory
authority implementing at the national level the Basle Accord (including,
without limitation, the Final Risk-Based Capital Guidelines of the Board of
Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CFR
Part 225, Appendix A) and the Final Risk-Based Capital Guidelines of the Office
of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in
respect of its Commitment or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets or
equity of such Lender (or any Applicable Lending Office or such bank holding
company) to a level below that which such Lender (or any Applicable Lending
Office or such bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request). For purposes of this Section
5.01(c) and Section 5.06 hereof, "Basle Accord" shall mean the proposals for
risk-based capital framework described by the Basle Committee on Banking
Regulations and Supervisory Practices in its paper entitled "International
Convergence of Capital Measurement and Capital Standards" dated July 1988, as
amended, modified and supplemented and in effect from time to time or any
replacement thereof.
(d) Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement that will entitle such Lender to
compensation under paragraph (a) or (c) of this Section 5.01 as promptly as
practicable, but in any event within 45 days, after such Lender obtains actual
knowledge thereof; provided, that (i) if such Lender fails to give such notice
within 45 days after it obtains actual knowledge of such an event, such Lender
shall, with respect to compensation payable pursuant to this Section 5.01 in
respect of any costs resulting from such event, only be entitled to payment
under this Section 5.01 for costs incurred from and after the date 45 days prior
to the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such Lender shall have no
obligation to designate an Applicable Lending Office located in the United
States of America. Each Lender will furnish to the Borrower a certificate
setting forth the basis and amount of each request by such Lender for
compensation under paragraph (a) or (c) of this Section 5.01. Determinations and
allocations by any Lender for purposes of this Section 5.01 of the effect of any
Regulatory Change pursuant to paragraph (a) or (b) of this Section 5.01, or of
the effect of
Credit Agreement
- 74 -
capital maintained pursuant to paragraph (c) of this Section 5.01, on its costs
or rate of return of maintaining Loans or its obligation to make Loans, or on
amounts receivable by it in respect of Loans, and of the amounts required to
compensate such Lender under this Section 5.01, shall be conclusive, provided
that such determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Eurodollar
Base Rate for any Interest Period:
(a) the Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(b) with respect to Loans of any Class, the Majority Revolving
Credit Lenders, the Majority Tranche A Lenders, the Majority Tranche B
Lenders or the Majority Tranche C Lenders, as the case may be,
determine, which determination shall be conclusive, and notify the
Agent that the relevant rates of interest referred to in the definition
of "Eurodollar Base Rate" in Section 1.01 hereof upon the basis of
which the rate of interest for Eurodollar Loans of such Class for such
Interest Period is to be determined are not likely adequately to cover
the cost to such Lenders of making or maintaining Eurodollar Loans for
such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, to Continue Eurodollar Loans or
to Convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Loans or Convert such Loans into Base Rate
Loans in accordance with Section 2.08 hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would
Credit Agreement
- 75 -
be disadvantageous to such Lender), then such Lender shall promptly notify the
Borrower thereof (with a copy to the Agent) and such Lender's obligation to make
or Continue, or to Convert Loans of any other Type into, Eurodollar Loans shall
be suspended until such time as such Lender may again make and maintain
Eurodollar Loans (in which case the provisions of Section 5.04 hereof shall be
applicable).
5.04 Treatment of Affected Loans. If the obligation of any
Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03
hereof, such Lender's Eurodollar Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest Period(s) for
Eurodollar Loans (or, in the case of a Conversion required by Section 5.01(b) or
5.03 hereof, on such earlier date as such Lender may specify to the Borrower
with a copy to the Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 5.01 or 5.03 hereof
which gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal which
would otherwise be applied to such Lender's Eurodollar Loans shall be
applied instead to its Base Rate Loans; and
(b) all Loans which would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans and all Base Rate Loans of such Lender which would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower with a copy to the Agent that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to the
Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans of the same Class made by
other Lenders are outstanding, such Lender's Base Rate Loans of such Class shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Loans of such Class are allocated among
the Lenders pro rata (as to principal amounts, Types and Interest Periods) in
accordance with their respective Commitments.
5.05 Compensation. The Borrower shall pay to the Agent for
account of each Lender, upon the request of such Lender
Credit Agreement
- 76 -
through the Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense which such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason
(including, without limitation, the acceleration of the Loans pursuant
to Section 10 hereof) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 hereof to be satisfied) to borrow a Eurodollar
Loan from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date specified
for such borrowing) at the Eurodollar Rate for such Loan for such Interest
Period over (ii) the amount of interest which otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender).
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Borrower under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any
Credit Agreement
- 77 -
amount receivable by any Lender hereunder in respect of any Letter of Credit
(which increases in cost, or reductions in amount receivable, shall be the
result of such Lender's or Lenders' reasonable allocation of the aggregate of
such increases or reductions resulting from such event), then, upon demand by
such Lender or Lenders (through the Agent), the Borrower shall pay immediately
to the Agent for account of such Lender or Lenders, from time to time as
specified by such Lender or Lenders (through the Agent), such additional amounts
as shall be sufficient to compensate such Lender or Lenders (through the Agent)
for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Borrower shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
(a) The Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Tax imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Tax by such non-U.S. Person), will not
be less than the amount stated herein to be then due and payable, provided that
the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to a Lender hereunder (other than in respect of
a Registered Loan) unless such Lender is, on the date hereof (or on the
date it becomes a Lender as provided in Section 12.06(b) hereof) and on
the date of any change in the Applicable Lending Office of such Lender,
delivers to the Borrower and the Agent a duly completed and executed
Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans), or
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "Registered Holder"), unless such Registered Holder
(or, if such Registered Holder is not the beneficial owner of such
Registered Loan, the beneficial owner thereof), on the date hereof (or
on the date such Registered Holder becomes a Lender as provided in
Section 12.06(b) hereof) and on the date of any change in the
Applicable Lending Office of such Lender, delivers to the Borrower and
the Agent either (x) a duly completed and executed Form W-8, together
with an annual certificate
Credit Agreement
- 78 -
stating that (A) such Registered Holder (or beneficial owner, as the
case may be) is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, and (B) such Registered Holder (or beneficial owner, as
the case may be) shall promptly notify the Borrower if at any time,
such Registered Holder (or beneficial owner, as the case may be)
determines that it is no longer in a position to provide such
certificate to the Borrower (or any other form of certification adopted
by the relevant taxing authorities of the United States of America for
such purposes), or (y) if such Registered Holder is not entitled to
deliver a Form W-8, a duly executed and completed Form 1001 or Form
4224, or
(iii) to any U.S. Tax imposed solely by reason of the failure by
such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity or connections with the United
States of America of such non-U.S. Person if such compliance is
required by statute or regulation of the United States of America as a
precondition to relief or exemption from such U.S. Tax.
For the purposes of this Section 5.07(a), (w) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a such
Form relates), (y) "Form W-8" shall mean Form W-8 (Certificate of Foreign Status
of the Department of Treasury of the United States of America) and (z) "U.S.
Taxes" shall mean any present or future tax, assessment or other charge or levy
imposed by or on behalf of the United States of America or any taxing authority
thereof or therein.
(b) Within 30 days after paying any amount to the Agent or any
Lender from which it is required by law to make any deduction or withholding,
and within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Borrower shall
deliver to the Agent for delivery to such non-U.S. Person evidence satisfactory
to such Person of such deduction, withholding or payment (as the case may be).
Credit Agreement
- 79 -
5.08 Replacement of Lenders. The Borrower may, at any time,
replace (a) any Lender that has requested compensation from the Borrower
pursuant to Section 5.01 or Section 5.07 hereof, (b) any Lender that fails to
make a Loan or to pay to the Agent for the account of the Issuing Bank the
amount of such Lender's Revolving Credit Commitment Percentage of any payment
under a Letter of Credit under the circumstances contemplated by Section 12.04
hereof or (c) any Lender that does not agree to any request by the Borrower for
a consent, approval, amendment or a waiver hereunder that requires the consent
or approval of all of the Lenders, by giving not less than ten Business Days'
prior notice to the Agent (which shall promptly notify such Lender), that it
intends to replace such Lender (a "Replaced Lender") with respect to its rights
and obligations (including, without limitation, its Loans and Letter of Credit
Interest outstanding and its Commitments) as a "Lender" under this Agreement and
such Replaced Lender's Notes (collectively, the "Transferred Interest") with one
or more banks or other financial institutions (including, but not limited to,
any other Lender or an affiliate of any Lender) selected by the Borrower and
acceptable to the Agent and the Issuing Bank (each, a "Replacement Lender").
Upon the effective date of any replacement under this Section 5.08 (and as a
condi tion thereto), (i) the Borrower shall pay or cause to paid to the Replaced
Lender an amount equal to all principal, interest, fees and other amounts
(including, without limitation, all amounts payable under Section 5.05 hereof as
if such Lender's Loans were being prepaid in full on such effective date) then
owing to such Replaced Lender hereunder and such Replaced Lender's Notes in
respect of the Transferred Interest (all or a portion of which amount may
constitute consideration for an assignment by such Replaced Lender of all or a
portion of the Transferred Interest) and (ii) such Replaced Lender shall assign
to each Replacement Lender (without representation, warranty or recourse
whatsoever) a portion of the Transferred Interest specified by the Borrower,
whereupon (x) each Replacement Lender shall become a "Lender" for all purposes
of this Agreement having the Commitments in the amount of such Replaced Lender's
Commitments assumed by it and all of the rights and obligations under this
Agreement of "Lender(s)" holding the Transferred Interest and (y) such Replaced
Lender shall cease to be responsible or liable for, and shall cease to be
entitled to the rights and benefits of, all or any portion of the Transferred
Interest (except that such Replaced Lender shall continue to benefit from the
obligations of the Borrower to such Replaced Lender under Sections 2.10(g),
2.10(l), 5.01, 5.05, 5.06, 5.07, 12.03 and 12.13 hereof and the obligations of
the Subsidiary Guarantors to such Replaced Lender under Section 6.03 hereof, and
the obligations of such Replaced Lender under Section 11.05 hereof shall survive
such replacement, in each case to the extent relating to events or circumstances
Credit Agreement
- 80 -
that occurred or existed on or before the date of such replacement).
Section 6. Guarantee.
---------
6.01 Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Lender and the Agent and their respective successors
and assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Note(s) held by each Lender of, the Borrower, all
Reimbursement Obligations and all other amounts from time to time owing to the
Lenders or the Agent by the Borrower under this Agreement and under the Notes
and under any Interest Rate Protection Agreements and by any Credit Party under
any of the other Basic Documents, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the "Guaranteed
Obligations"). The Subsidiary Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Subsidiary Guarantors will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
6.02 Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 6.01 hereof are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of the Borrower under this Agreement, the
Notes or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.02 that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not affect the liability of the Subsidiary Guarantors hereunder which
shall remain absolute and unconditional as described above:
Credit Agreement
- 81 -
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of, the
Agent or any Lender or Lenders as security for any of the Guaranteed
Obligations shall fail to be perfected;
(v) any of the Guaranteed Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Credit Party) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any Credit
Party);
(vi) the Borrower shall be insolvent on the date hereof or shall
become insolvent on the date that any Loan is made; and
(vii) the execution and delivery of a Tranche C Term Loan Activation
Notice providing for the activation of Tranche C Term Loan Commitments
in any amount.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under this Agreement or the Notes or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
Credit Agreement
- 82 -
6.03 Reinstatement. The obligations of the Subsidiary
Guarantors under this Section 6 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the Agent and
each Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
6.04 Subrogation. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 6.01
hereof, whether by subrogation or otherwise, against the Borrower or any other
guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
6.05 Remedies. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors, on the one hand, and the
Lenders and the Agent, on the other hand, the obligations of the Borrower under
this Agreement and the Notes may be declared to be forthwith due and payable as
provided in Section 10 hereof (and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 10) for purposes
of Section 6.01 hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against the Borrower and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by the Borrower) shall
forthwith become due and payable by the Subsidiary Guarantors for purposes of
said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this Section 6 is
a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.07 Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any
Credit Agreement
- 83 -
Subsidiary Guarantor (an "Excess Funding Guarantor") shall pay Guaranteed
Obligations in excess of the Excess Funding Guarantor's Pro Rata Share (as
hereinafter defined) of such Guaranteed Obligations, the other Subsidiary
Guarantors shall, on demand (but subject to the next sentence hereof), pay to
the Excess Funding Guarantor an amount equal to their respective Pro Rata Shares
of such Excess Funding Guarantor's payment. The payment obligation of any
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 6.07
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Section 6 and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such excess until payment and satisfaction in full of
all of such obligations. For the purposes hereof, "Pro Rata Share" shall mean,
for any Subsidiary Guarantor, a percentage equal to the percentage of such
Subsidiary Guarantor's Net Assets as of the Valuation Date (as defined in the
next sentence) of the aggregate Net Assets of all of the Subsidiary Guarantors
as at such date. For purposes of the preceding sentence, the "Valuation Date"
shall mean the date hereof; provided that, if the Agent requests from time to
time that the Subsidiary Guarantors ratify and confirm their respective
obligations under this Section 6, they shall promptly do so pursuant to an
instrument reasonably satisfactory to the Agent and the Valuation Date shall
mean the date of the latest such ratification and confirmation to occur at the
request of the Agent after the date hereof.
6.08 Limitation on Guarantee Obligations. In any action or
proceeding involving any State corporate law, or any State or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 hereof would otherwise, taking into account the provisions of
Section 6.07 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 6.01, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, as the case may be, any Lender,
the Agent or any other Person, be automatically limited and reduced to the
highest amount which is valid and enforceable and not subordinated to the claims
of other creditors as determined in such action or proceeding.
6.09 Instrument for the Payment of Money. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Section 6 constitutes
an instrument for the payment of money, and consents and agrees that any Lender
or the Agent, at its sole option, in the event of a dispute by such Subsidiary
Credit Agreement
- 84 -
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
Section 7. Conditions Precedent.
--------------------
7.01 Effectiveness of this Agreement. The effectiveness of the
amendment and restatement of the Existing Credit Agreement provided for hereby
is subject to (i) the execution and delivery of an execution counterpart of this
Agreement by each Person stated to be a party to this Agreement and (ii) the
receipt by the Agent of the following documents and evidence, each of which
documents (and, in the case of certificates containing attachments, such
attachments) and all of which evidence shall, except as expressly specified
below, be satisfactory in form and substance to the Agent and, to the extent
specified below, to each Lender (provided that, if such conditions precedent
shall not have been satisfied on or before June 30, 1996, this Amendment and
Restatement shall have no force or effect, regardless of whether such conditions
precedent are thereafter satisfied):
(a) Authority. The following evidence and documents,
each of which documents shall be certified as indicated
below:
(i) (x) a copy of the charter, as amended, of each Credit
Party that is a corporation and each general partner of each
Credit Party that is a partnership (each such Credit Party and
general partner being referred to as a "Relevant Corporation")
certified by the Secretary of State of its jurisdiction of
incorporation, (y) a certificate as to the good standing of
and charter documents filed by such Relevant Corporation from
such Secretary of State, dated as of a recent date and (z) a
certificate as to the good standing or qualification to do
business of such Relevant Corporation from each jurisdiction
in which the nature of the business conducted by such Relevant
Corporation makes such qualification necessary and where
failure so to qualify would have a Material Adverse Effect;
(ii) a certificate of the Secretary or an Assistant
Secretary of each Relevant Corporation, dated the Restatement
Effective Date and certifying (w) that attached thereto is a
true and complete copy of the by-laws of such Relevant
Corporation as in effect on the date of such certificate, (x)
that attached thereto is a true and complete copy of
resolutions duly adopted
Credit Agreement
- 85 -
by the board of directors of such Relevant Corporation
authorizing the execution, delivery and performance of such of
the Basic Documents to which such Relevant Corporation and/or
the partnership of which such Relevant Corporation is a
general partner, as the case may be, is or is intended to be a
party and the extensions of credit hereunder, and that such
resolutions have not been modified, rescinded or amended and
are in full force and effect, (y) that the charter of such
Relevant Corporation has not been amended since the date of
the certification thereto furnished pursuant to clause (i)
above, and (z) as to the incumbency and specimen signature of
each officer of such Relevant Corporation executing such of
the Basic Documents to which such Relevant Corporation and/or
the partnership of which such Relevant Corporation is a
general partner, as the case may be, is intended to be a party
and each other document to be delivered by such Relevant
Corporation and/or the partnership of which such Relevant
Corporation is a general partner, as the case may be, from
time to time in connection therewith (and the Agent and each
Lender may conclusively rely on such certificate until it
receives notice in writing from such Relevant Corporation);
(iii) a certificate of another officer of each Relevant
Corporation as to the incumbency and specimen signature of the
Secretary or Assistant Secretary, as the case may be, of such
Relevant Corporation; and
(iv) a certificate of the Secretary or an Assistant
Secretary of each general partner of each Credit Party that is
a partnership, dated the Effective Date, and certifying (x) as
to the names of all of the Persons that are partners in such
partnership and (y) that attached thereto is a true and
complete copy of the partnership agreement forming such
partnership as in effect on the date of such certificate.
(b) Officer's Certificate. A certificate of a senior officer
of the Borrower to the effect set forth in clauses (a) and (b) of the
first sentence of Section 7.02 hereof (excluding references to
representations and warranties under the Founders Subordination
Agreement) and including calculations demonstrating in reasonable
detail compliance with Section 1008(a) of the 1995 Senior Subordinated
Note Indenture and Section 1008(a) of the 1993 Senior Subordinated Note
Indenture after giving effect to the
Credit Agreement
- 86 -
borrowings and prepayments hereunder to be made on the
Restatement Effective Date.
(c) Opinions of Counsel.
-------------------
(i) Opinion of Counsel to the Obligors. An opinion of
Thomas & Libowitz, P.A., counsel to the Obligors.
(ii) Opinion of Counsel to Chase. An opinion of Milbank,
Tweed, Hadley & McCloy, special New York counsel to Chase.
(d) Notes. The Notes, duly completed and executed for each
Lender (except that, in the case of a Registered Holder, Notes shall be
required only to the extent that such Registered Holder shall have
requested the execution and delivery of a Note pursuant to Section
2.07(g) hereof).
(e) Security Agreement. The Security Agreement, duly executed
and delivered by each Obligor and the Agent and the stock certificates
and promissory notes identified under the name of such Obligor in
Annexes 1 and 7 thereto, respectively, in each case accompanied by
undated stock powers or bond powers, as the case may be, executed in
blank. In addition, each Obligor shall have taken such other action
(including delivering to the Agent, for filing, appropriately completed
and duly executed copies of Uniform Commercial Code financing
statements) as the Agent shall have requested in order to perfect the
security interests created pursuant to the Security Agreement.
(f) Affiliate Guarantee and Security Agreement. The Affiliate
Guarantee and Security Agreement, duly executed and delivered by KIG,
Cunningham, GDLP and the Agent and the stock certificates identified
under the names of KIG, Cunningham and GDLP in Annex 1 thereto, in each
case accompanied by undated stock powers executed in blank. In
addition, KIG, Cunningham and GDLP shall have taken such other action
(including delivering to the Agent, for filing, appropriately completed
and duly executed copies of Uniform Commercial Code financing
statements) as the Agent shall have requested in order to perfect the
security interests created pursuant to the Affiliate Guarantee and
Security Agreement.
(g) GDC Security Agreement. The GDC Security Agreement, duly
executed and delivered by GDC and the Agent. In addition, GDC shall
have taken such other action (including delivery to the Agent, for
filing, appropriately completed and duly executed copies of Uniform
Commercial
Credit Agreement
- 87 -
Code financing statements) as the Agent shall have requested in order
to perfect the security interests created pursuant to the GDC Security
Agreement.
(h) Interest, Fees and Expenses under Existing Credit
Agreement. Evidence that the Borrower shall have paid to the Agent all
accrued and unpaid interest, fees and expenses owing by the Borrower
under the Existing Credit Agreement.
(i) Founders Subordination Agreement. The Founders
Subordination Agreement, duly executed and delivered by Carolyn C.
Smith and the Agent.
(j) Program Services Agreements. A certificate of a senior
financial officer of the Borrower certifying that (i) attached thereto
are true and complete copies of each Program Services Agreement to
which the Borrower of any of its Subsidiaries is a party on the
Restatement Effective Date after the consummation of the River City
Non-License Acquisition, (ii) there has been no amendment or
modification to any such Program Services Agreement as furnished to the
Agent prior to the Restatement Effective Date and (iii) each such
Program Services Agreement is in full force and effect.
(k) Network Affiliations. A certificate of a senior financial
officer of the Borrower certifying that (i) for each Station that is an
Owned Station on the Restatement Effective Date, the Borrower or any of
its Subsidiaries has entered into a network affiliation agreement with
Fox Broadcasting Company or the United Paramount Network (or other
network satisfactory to the Agent) for the carriage of programming over
the facilities of such Station, (ii) attached thereto are true and
complete copies of each such network affiliation agreement,
satisfactory in form and substance to the Agent and the Lenders, and
(iii) each such network affiliation agreement is in full force and
effect.
(l) Asset Use and Operating Agreements. A certificate of a
senior financial officer of the Borrower certifying that (i) the
Borrower or Subsidiary operating each Owned Station and the respective
License Subsidiary have executed and delivered an Asset Use and
Operating Agreement with respect to such Owned Station, (ii) attached
thereto are true and complete copies of each such Asset Use and
Operating Agreement (including any and all modifications and
supplements thereto) and (iii) each such Asset Use and Operating
Agreement is in full force and effect.
Credit Agreement
- 88 -
(m) River City Non-License Acquisition. A certificate
of a senior financial officer of the Borrower certifying that:
(i) attached thereto are true and complete copies of the
River City Acquisition Documents, which shall be satisfactory
in form and substance to the Agent;
(ii) neither any Obligor nor (to the knowledge of such
officer (after due inquiry)) any other party to the River City
Acquisition Documents shall be in breach of any of its
obligations under any of the River City Acquisition Documents;
(iii) the representations and warranties contained in each
River City Acquisition Document by any Obligor and (to the
knowledge of such officer (after due inquiry)) each of the
other parties thereto shall be true, correct and complete in
all material respects on and as of the Restatement Effective
Date as if made on and as of the Restatement Effective Date
(or, if any such representation and warranty is expressly
stated to have been made as of a specific date, as of such
specific date);
(iv) none of the provisions of the River City Asset
Purchase Agreement or the River City Option Agreements
heretofore delivered to the Agent and the Lenders shall have
been amended, waived or otherwise modified, or executed and
delivered in a form other than the form heretofore delivered
to the Agent and the Lenders (except with only such changes
thereto as (x) are effected pursuant to written instruments
copies of which have been delivered to the Agent prior to the
date of this Agreement and (y) are stated to be satisfactory
to the Agent and the Lenders in a notice delivered by the
Agent (on behalf of itself and the Lenders) to the Borrower);
(v) the conditions precedent to the transactions
contemplated by each of the River City Acquisition Documents
in connection with the River City Non-License Acquisition
shall (except as expressly provided in clause (iv) above) have
been duly satisfied in all respects and such transactions
shall have been duly consummated on the Restatement Effective
Date in the manner contemplated by such River City Acquisition
Documents (including, without limitation, the repayment by
River City of its outstanding indebtedness as
Credit Agreement
- 89 -
contemplated by the River City Acquisition Documents);
and
(vi) the aggregate amount of consideration paid in cash on
the Restatement Effective Date by the Borrower and its
Subsidiaries for the River City Non-License Acquisition, which
shall not exceed $855,000,000.
(n) Consent and Agreement.
---------------------
(i) a Consent and Agreement, duly executed and
delivered by the River City Sellers, the Obligors and the
Agent relating to the River City Asset Purchase Agreement, the
River City Option Agreements and the Time Brokerage Agreement
dated as of May 31, 1996 by and among the River City Sellers
and the Borrower relating to each of the "Group I Stations" as
such term is defined in the River City Group I Option
Agreement;
(ii) a Consent and Agreement, duly executed and delivered
by Raleigh (WRDC-TV), Inc., Raleigh (WRDC-TV) Licensee, Inc.,
WLFL, Inc. and the Agent relating to the Program Services
Agreement dated as of March 27, 1995 between Raleigh
(WRDC-TV), Inc., Raleigh (WRDC-TV) Licensee, Inc. and WLFL,
Inc.;
(iii) a Consent and Agreement, duly executed and delivered
by Birmingham (WABM-TV), Inc., Birmingham (WABM-TV) Licensee,
Inc., WTTO, Inc. and the Agent relating to the Program
Services Agreement dated as of July 25, 1995 between
Birmingham (WABM-TV), Inc., Birmingham (WABM-TV) Licensee,
Inc. and WTTO, Inc.;
(iv) a Consent and Agreement, duly executed and delivered
by Baltimore (WNUV-TV), Inc., Baltimore (WNUV-TV) Licensee,
Inc., Chesapeake Television, Inc. and the Agent relating to
the Program Services Agreement dated as of July 24, 1995
between Baltimore (WNUV-TV), Inc., Baltimore (WNUV-TV)
Licensee, Inc. and Chesapeake Television, Inc.;
(v) a Consent and Agreement, duly executed and delivered
by WVTV, Inc., WVTV Licensee, Inc., WCGV, Inc. and the Agent
relating to the Program Services Agreement dated as of July
24, 1995 between WVTV, Inc., WVTV Licensee, Inc. and WCGV,
Inc.; and
(vi) a Consent and Agreement, duly executed and delivered
by WPTT, Inc., WPGH, Inc. and the Agent
Credit Agreement
- 90 -
relating to the Program Services Agreement dated as of
May 5, 1995 between WPTT, Inc. and WPGH, Inc.
(o) KSMO and WSTR Options. A certificate of a senior
financial officer of the Borrower certifying that:
(i) the Borrower or any Subsidiary of the Borrower
party to the KSMO Option shall have delivered a notice of
exercise of the option thereunder and filed with the FCC all
applications in connection with such exercise for material
authorizations, licenses and permits issued by the FCC that
are required or necessary for the operation of KSMO-TV, and
the conduct of the business of the Borrower and its
Subsidiaries with respect to KSMO-TV, as proposed to be
conducted; and
(ii) the Borrower or any Subsidiary of the Borrower party
to the WSTR Option shall have delivered a notice of exercise
of the option thereunder and filed with the FCC all
applications in connection with such exercise for material
authorizations, licenses and permits issued by the FCC that
are required or necessary for the operation of WSTR-TV, and
the conduct of the business of the Borrower and its
Subsidiaries with respect to WSTR-TV, as proposed to be
conducted.
(p) Certain Financial Conditions. A certificate of a senior
financial officer of the Borrower certifying (and setting forth
calculations in reasonable detail and, where appropriate, assumptions,
which assumptions shall be acceptable to the Agent, demonstrating)
that:
(i) attached thereto is a complete and accurate
calculation of EBITDA for (x) the fiscal year of the Borrower
ending on December 31, 1995 and (y) the twelve-month period
ending on March 31, 1996, the amount of which for such period
ending on March 31, 1996 shall be greater than $185,000,000;
(ii) the ratio of Total Indebtedness on the Restatement
Effective Date (calculated after giving effect to borrowings
and prepayments hereunder to be made on the Restatement
Effective Date) to EBITDA for the twelve-month period ending
on March 31, 1996 (calculated on a pro forma basis as if the
River City Non-License Acquisition had been consummated on
April 1, 1995) does not exceed 6.85 to 1; and
Credit Agreement
- 91 -
(iii) the Borrower will be in compliance on the Restatement
Effective Date with Sections 9.10, 9.11, 9.12, 9.13, 9.14,
9.15, 9.16 hereof (calculated after giving effect to
borrowings and prepayments hereunder to be made on the
Restatement Effective Date and calculated on a pro forma basis
as if the River City Non-License Acquisition had been
consummated on April 1, 1995).
(q) Financial Statements. A certificate of a senior financial
officer of the Borrower, satisfactory in form and substance to the
Agent and the Lenders, certifying that the Borrower has heretofore
delivered to the Lenders financial statements that are complete and
correct and present fairly, in all material respects, the consolidated
and consolidating financial condition of the Borrower and its
Consolidated Subsidiaries as at December 31, 1995 and the consolidated
and consolidating results of their operations for the fiscal year ended
on said date in accordance with generally accepted accounting
principles and practices applied on a consistent basis, in each case on
a pro-forma basis after giving effect to the River City Non-License
Acquisition and the borrowings and prepayments hereunder to be made on
the Restatement Effective Date.
(r) Solvency Analysis. A certificate of a senior financial
officer of the Borrower certifying that, as of the Restatement
Effective Date and after giving effect to the initial extension of
credit hereunder and to the other transactions contemplated hereby, (i)
the aggregate value of all Properties of the Borrower and its
Subsidiaries at their present fair saleable value (i.e., the amount
which may be realized within a reasonable time, considered to be six to
eighteen months, either through collection or sale at the regular
market value, conceiving the latter as the amount which could be
obtained for the Property in question within such period by a capable
and diligent businessman from an interested buyer who is willing to
purchase under ordinary selling conditions), exceeds the amount of all
the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of the Borrower and its
Subsidiaries, (ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with which to
conduct their business operations as heretofore conducted and (iii) the
Borrower and its Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
(s) No Material Adverse Change. A certificate of a senior
financial officer of the Borrower certifying that
Credit Agreement
- 92 -
since December 31, 1995 through the Restatement Effective Date there
has been no material adverse change in the condition (financial or
otherwise), operations, business, prospects, Properties (including,
without limitation, Broadcast Licenses), nature of Properties or
liabilities of any of (x) River City and its Affiliates from that set
forth in the audited financial statements as at said date and furnished
to the Agent prior to the date hereof or (y) the Borrower and its
Subsidiaries from that set forth in the audited financial statement as
at said date and furnished to the Agent prior to the date hereof. In
addition since April 10, 1996, there shall not have occurred a material
adverse change in loan syndication conditions generally.
(t) Insurance.
----------
(i) Certificates of insurance evidencing the
existence of all insurance required to be maintained by the
Borrower and its Subsidiaries pursuant to Section 9.04 hereof
and the designation of the Agent as the loss payee, or
additional insured, as appropriate, thereunder to the extent
required by said Section 9.04 in respect of all insurance
covering tangible Property, such certificates to be in such
form and contain such information as is specified in said
Section 9.04;
(ii) A certificate of a senior financial officer of the
Borrower setting forth the insurance obtained by it in
accordance with the requirements of Section 9.04 and stating
that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid; and
(iii) a written report, dated reasonably near the Effective
Date, of PSA Financial Center, or any other firm of
independent insurance brokers of nationally recognized
standing, as to such insurance and stating that, in their
opinion, such insurance adequately protects the interests of
the Agent and the Lenders, is in compliance with the
provisions of said Section 9.04, and is comparable in all
respects with insurance carried by responsible owners and
operators of Properties similar to those covered or
contemplated to be covered by the Mortgages.
(u) Environmental Surveys. Environmental surveys and
assessments prepared by a firm of licensed engineers (familiar with the
identification of toxic and hazardous substances) covering such
Properties as may be reasonably requested by any Lender.
Credit Agreement
- 93 -
(v) No Judgment and Litigation. A certificate of a senior
financial officer of the Borrower certifying that (i) there exists no
judgment, order, injunction or other restraint issued or filed which
prohibits the making of any Loans, the issuance of any Letters of
Credit or the consummation of the River City Non-License Acquisition,
any River City License Acquisition or the other transactions
contemplated hereby and (ii) no action, suit or litigation proceeding
at law or in equity by or before any court or Governmental Authority or
agency exists or is threatened with respect to the River City
Non-License Acquisition or any River City License Acquisition.
(w) Structure, Etc. Neither the Agent nor any Lender shall
have objected in writing to (i) the Borrower's state and Federal tax
assumptions, (ii) the ownership, capital, organizational and legal
structure of the Borrower and its Subsidiaries, including, without
limitation, the terms and conditions of the Seller Stock of the
Borrower to be issued to River City in connection with the River City
Non-License Acquisition, (iii) the quality and condition of the
Properties of the Borrower, River City and their respective
Subsidiaries, (iv) all material contracts (including, without
limitation, programming agreements) of the Borrower, River City and
their respective Subsidiaries or (v) any issues relating to the Federal
Communications Act of 1934, as amended, or any applicable FCC rule,
regulation or policy.
(x) Indebtedness. A certificate of a senior financial officer
of the Borrower certifying that on the Restatement Effective Date
(after giving effect to the initial extension of credit to be made
hereunder on such date) there exists no Indebtedness of any Obligors
other than Indebtedness permitted by clauses (a) and (b) of Section
9.07 hereof.
(y) Estate of Julian S. Smith. A letter addressed to the Agent
and the Lenders from the attorney for the Estate of Julian S. Smith
stating that, and indicating the date as of which, (i) the Estate of
Julian S. Smith has been closed and (ii) the Term Note dated September
30, 1990 of the Borrower payable to Julian S. Smith in the original
face amount of $7,515,000 has been validly assigned to Carolyn C.
Smith.
(z) Other Documents. Such other documents as the Agent or any
Lender or special New York counsel to Chase may reasonably request.
Credit Agreement
- 94 -
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Borrower of such fees as the Borrower
shall have agreed to pay or deliver to any Lender or the Agent in connection
herewith, including, without limitation, the reasonable fees and expenses of
Milbank, Tweed, Hadley & McCloy, special New York counsel to Chase, and Wiley,
Rein & Fielding, special FCC counsel to Chase, in connection with the
negotiation, preparation, execution and delivery of this Agreement and the other
Basic Documents and the making of the Loans hereunder (to the extent that bills
for such fees and expenses have been delivered to the Borrower).
7.02 Initial and Subsequent Loans. The obligation of the
Lenders to make any Loan to the Borrower upon the occasion of each borrowing
hereunder (including the borrowing on the Restatement Effective Date), and the
obligation of the Issuing Bank to issue any Letter of Credit hereunder, is
subject to the conditions precedent that, both immediately prior to the making
of such Loan or issuance of such Letter of Credit and also after giving effect
thereto:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by the Borrower in
Section 8 hereof, and by each Credit Party and Carolyn C. Smith in each
of the other Basic Documents to which such Person is a party, shall be
true and complete on and as of the date of the making of such Loan or
issuance of such Letter of Credit with the same force and effect as if
made on and as of such date (or, if any such representation and
warranty is expressly stated to have been made as of a specific date,
as of such specific date); and
(c) the Borrower shall be in compliance with the terms and
conditions of each Senior Subordinated Note Indenture.
Each notice of borrowing by the Borrower or request for a Letter of Credit
hereunder shall constitute a certification by the Borrower to the effect set
forth in the preceding sentence (both as of the date of such notice or request
and, unless the Borrower otherwise notifies the Agent prior to the date of such
borrowing or issuance, as of the date of such borrowing or issuance) and, in the
case of any borrowing of any Revolving Credit Loan or request for any Letter of
Credit, shall include calculations demonstrating in reasonable detail, and, if
requested by the Agent, a certificate from (i) the trustee under the 1995 Senior
Subordinated Note Indenture confirming compliance with Section 1008(a) of the
Senior Subordinated Note and (ii) the trustee under the 1993 Senior Subordinated
Note Indenture confirming compliance with Section 1008(a) of the 1993 Senior
Subordinated
Credit Agreement
- 95 -
Note Indenture, in the case of each of the foregoing clauses (i) and (ii) after
giving effect to such borrowing or the issuance of such Letter of Credit. If the
Majority Revolving Credit Lenders, the Majority Tranche A Lenders, the Majority
Tranche B Lenders or the Majority Tranche C Lenders, as the case may be, notify
the Agent prior to the proceeds of such borrowing being made available to the
Borrower or prior to the issuance of such Letter of Credit (as the case may be)
that there is a reasonable basis to doubt the accuracy of the calculations
referred to in the preceding sentence, such borrowing or such issuance (as the
case may be) shall not occur.
Section 8. Representations and Warranties. The Obligors
represent and warrant to the Lenders and the Agent that:
8.01 Corporate Existence. Each of the Borrower and its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
8.02 Financial Condition. The Borrower has heretofore
furnished to each of the Lenders consolidated and consolidating balance sheets
of the Borrower and its Consolidated Subsidiaries as at December 31, 1995 and
the related consolidated and consolidating statements of income, retained
earnings and changes in financial position (or of cash flow, as the case may be)
of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on
said date, with the opinion thereon (in the case of said consolidated balance
sheet and statements) of Arthur Andersen & Company. All such financial
statements are complete and correct and present fairly, in all material
respects, the consolidated and consolidating financial condition of the Borrower
and its Consolidated Subsidiaries as at said date and the consolidated and
consolidating results of their operations for the fiscal year ended on said date
in accordance with generally accepted accounting principles and practices
applied on a consistent basis. Neither the Borrower nor any of its Subsidiaries
had on said date any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected or
Credit Agreement
- 96 -
provided for in said balance sheet as at said date. Since December 31, 1995,
there has been no material adverse change in the consolidated financial
condition, operations, business or prospects taken of the Borrower and its
Consolidated Subsidiaries taken as a whole from that set forth in said financial
statements as at said date. The projections and assumptions underlying the
calculations contained in the certificates referred to in Section 7.01(p) and
the financial statements referred to in Section 7.01(q) hereof will be
reasonable, and the pro forma adjustments underlying such calculations will be
based upon reasonable estimates and properly effected in accordance with
generally accepted accounting principles after giving effect to the River City
Non-License Acquisition.
8.03 Litigation. Except as disclosed to the Lenders in writing
on or prior to the date of this Agreement, there are no legal or arbitral
proceedings, or any proceedings by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of the Borrower (after due
inquiry)) threatened (a) against the Borrower, any of its Subsidiaries or any
Material Third-Party Licensee or any Person that owns the capital stock (or
other equity ownership interest) of such Material Third-Party Licensee which, if
adversely determined, could have a Material Adverse Effect or (b) relating to
the River City Non-License Acquisition, any River City License Acquisition or
the other transactions contemplated hereby.
8.04 No Breach. None of the execution and delivery of this
Agreement and the Notes and the other Transaction Documents, the consummation of
the transactions herein and therein contemplated and compliance with the terms
and provisions hereof and thereof will conflict with or result in a breach of,
or require any consent (other than the approvals of the FCC provided in the
Security Documents and those referred to in Section 8.06 hereof) under, the
charter or by-laws of any Obligor, or any applicable law or regulation, or any
order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which the Borrower or any of its
Subsidiaries is a party or by which any of them is bound or to which any of them
is subject, or constitute a default under any such agreement or instrument, or
(except for the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Borrower or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument.
8.05 Action. Each Obligor has all necessary corporate power
and authority to execute, deliver and perform its obligations under each of the
Transaction Documents to which it is a party; the execution, delivery and
performance by each
Credit Agreement
- 97 -
Obligor of each of the Transaction Documents to which it is a party have been
duly authorized by all necessary corporate action on its part (including,
without limitation, any required shareholder approvals); and this Agreement has
been duly and validly executed and delivered by each Obligor and constitutes,
and each of the other Transaction Documents to which such Obligor is a party
when executed and delivered by such Obligor will constitute, its legal, valid
and binding obligation, enforceable in accordance with its terms.
8.06 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by any
Obligor of the Transaction Documents to which such Obligor is a party or for the
validity or enforceability thereof, except (a) for filings and recordings in
respect of the Liens created pursuant to the Security Documents, (b) filings
under 47 CFR ss.73.3613 and (c) the approvals by the FCC for the acquisition of
any Broadcast Licenses.
8.07 Use of Loans. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
8.08 ERISA. The Borrower and the ERISA Affiliates have
fulfilled their respective obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions in the ordinary course of
business).
8.09 Taxes. United States Federal income tax returns of the
Borrower and its Subsidiaries have been examined and closed through the fiscal
year of the Borrower ended December 31, 1992. The Borrower and its Subsidiaries
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any of its Subsidiaries. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Borrower, adequate. The Borrower has not
given or been requested to give a waiver of the
Credit Agreement
- 98 -
statute of limitations relating to the payment of any Federal, state, local or
foreign taxes or other impositions. If the Borrower is a member of an affiliated
group of corporations filing consolidated returns for United States Federal
income tax purposes, it is the "common parent" of such group.
8.10 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
8.12 Indebtedness and Interest Rate Protection Agreements. (a)
Part A of Schedule I hereto is a complete and correct list, as of the date of
this Agreement, of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Borrower or any of its
Subsidiaries, the aggregate principal or face amount of which equals or exceeds
(or may equal or exceed) $150,000, and the aggregate principal or face amount
outstanding or which may become outstanding under each such arrangement is
correctly described in Part A of Schedule I hereto.
(b) Part B of Schedule I hereto is a complete and correct
list, as of the date of this Agreement, of each Interest Rate Protection
Agreement in respect of a notional principal amount which equals or exceeds (or
may equal or exceed) $150,000.
8.13 Hazardous Materials. The Borrower and each of its
Subsidiaries have obtained all permits, licenses and other authorizations which
are required under all Environmental Laws, except to the extent failure to have
any such permit, license or authorization would not result in a liability
(individually or in the aggregate) exceeding $1,000,000. The Borrower and each
of its Subsidiaries are in compliance with the terms and conditions of all such
permits, licenses and authorizations, and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply would not
Credit Agreement
- 99 -
result in a liability (individually or in the aggregate) exceeding $1,000,000.
In addition, except as set forth in Schedule II hereto:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is
pending or threatened by any governmental or other entity with respect
to any alleged failure by the Borrower or any of its Subsidiaries to
have any permit, license or authorization required in connection with
the conduct of the business of the Borrower or any of its Subsidiaries
or with respect to any generation, treatment, storage, recycling,
transportation, discharge or disposal, or any Release of any Hazardous
Materials generated by the Borrower or any of its Subsidiaries.
(b) Neither the Borrower nor any of its Subsidiaries or
Environmental Affiliates has operated a treatment, storage or disposal
facility requiring a permit under the Resource Conservation and
Recovery Act of 1976, as amended, or under any comparable state or
local statute at any Property now or previously owned or leased by the
Borrower or any of its Subsidiaries or Environmental Affiliates; and
(i) no substance containing PCBs is or has been present
at any Property now or previously owned or leased by the
Borrower or any of its Subsidiaries or Environmental
Affiliates;
(ii) no asbestos is or has been present at any Property
now or previously owned or leased by the Borrower or any of
its Subsidiaries or Environmental Affiliates;
(iii) there are no underground storage tanks active or
abandoned, at any Property now or previously owned or leased
by the Borrower or any of its Subsidiaries or Environmental
Affiliates;
(iv) no Hazardous Materials have been Released, in a
reportable quantity, where such a quantity has been
established by statute, ordinance, rule, regulation or order,
at, on or under any Property now or previously owned by the
Borrower or any of its Subsidiaries or Environmental
Affiliates; and
(v) no Hazardous Materials have been otherwise Released
at, on or under any Property now or previously
Credit Agreement
- 100 -
owned or leased by the Borrower or any of its Subsidiaries to
an extent that it has, or may reasonably be expected to have,
a liability exceeding $1,000,000.
(c) Neither the Borrower nor any of its Subsidiaries or
Environmental Affiliates has transported or arranged for the
transportation of any Hazardous Material to any location which is
listed on the National Priorities List under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), listed for possible inclusion on the National
Priorities List by the Environmental Protection Agency in CERCLIS or on
any similar state list or which is the subject of Federal, state or
local enforcement actions or other investigations which may lead to
claims against the Borrower or any of its Subsidiaries for clean-up
costs, remedial work, damages to natural resources or for personal
injury claims, including, but not limited to, claims under CERCLA.
(d) No Hazardous Material generated by the Borrower or any of
its Environmental Affiliates has been recycled, treated, stored,
disposed of or Released by the Borrower or any of its Environmental
Affiliates at any location other than those listed in Schedule II
hereto.
(e) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Borrower or
any of its Subsidiaries and no Property now or previously owned or
leased by the Borrower or any of its Subsidiaries is listed or proposed
for listing on the National Priorities list promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up.
(f) No Liens have arisen under or pursuant to any
Environmental Laws on any of the real Property or Properties owned or
leased by the Borrower or any of its Subsidiaries, and no government
actions have been taken or are in process which could subject any of
such Properties to such Liens and neither the Borrower nor any of its
Subsidiaries would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any Property owned
by it in any deed to such Property.
(g) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in
the possession of the Borrower or any of its Subsidiaries in relation
to any Property or facility now or previously owned or leased by the
Borrower or any of its
Credit Agreement
- 101 -
Subsidiaries which have not been made available to the Lenders.
Credit Agreement
- 102 -
8.14 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule III hereto is a complete
and correct list, as of the date hereof, of all of the Subsidiaries of the
Borrower, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule III hereto,
(x) each of the Borrower and its Subsidiaries owns, free and clear of Liens
(other than Liens created pursuant to the Security Documents), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of Schedule III hereto, (y) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule III hereto is a complete
and correct list, as of the date of this Agreement, of each Investment (other
than Investments disclosed in Part A of said Schedule III hereto) in an amount
exceeding $25,000 held by the Borrower or any of its Subsidiaries in any Person
and, for each such Investment, (i) the identity of the Person or Persons holding
such Investment and (ii) the nature of such Investment. Except as disclosed in
Part B of Schedule III hereto, each of the Borrower and its Subsidiaries owns,
free and clear of all Liens (other than Liens created pursuant to the Security
Documents), all such Investments.
(c) None of the Subsidiaries of the Borrower is, on the date
of this Agreement, subject to any indenture, agreement, instrument or other
arrangement of the type described in the last sentence of 9.22 hereof.
8.15 Broadcast Licenses.
(a) Part A of Schedule IV hereto accurately and completely
lists, as of the date hereof, for each Owned Station, all Broadcast Licenses
granted or assigned to the Borrower or any of its Subsidiaries, or under which
the Borrower and its Subsidiaries have the right to operate such Owned Station.
The Broadcast Licenses listed on Part A of Schedule IV hereto with respect to
any Owned Station include all material authorizations, licenses and permits
issued by the FCC that are required or necessary for the operation of such Owned
Station, and the conduct of the business of the Borrower and its Subsidiaries
with respect to such Owned Station, as now conducted or proposed to be
Credit Agreement
- 103 -
conducted. The Broadcast Licenses listed in Part A of Schedule IV hereto are
issued in the name of the respective License Subsidiary for the Owned Station
being operated under authority of such Broadcast Licenses and are on the date
hereof validly issued and in full force and effect, and the Borrower and its
Subsidiaries have fulfilled and performed in all material respects all of their
obligations with respect thereto and have full power and authority to operate
thereunder.
(b) Part B of Schedule IV hereto accurately and completely
lists, as of the date hereof, for each Contract Station, all Broadcast Licenses
granted or assigned to the Material Third-Party Licensee for such Contract
Station, or under which the Material Third-Party Licensee for such Contract
Station has the right to operate such Contract Station. The Broadcast Licenses
listed on Part B of Schedule IV hereto with respect to any Contract Station
include all material authorizations, licenses and permits issued by the FCC that
are required or necessary for the operation of such Contract Station, and the
conduct of the business of the Material Third-Party Licensee for such Contract
Station with respect to such Contract Station, as now conducted or proposed to
be conducted. The Broadcast Licenses listed in Part B of Schedule IV hereto are
issued in the name of the Material Third-Party Licensee for the Contract Station
being operated under authority of such Broadcast Licenses and are on the date
hereof validly issued and in full force and effect, and the Material Third-Party
Licensee for such Contract Station has fulfilled and performed in all material
respects all of its obligations with respect thereto and has full power and
authority to operate thereunder.
8.16 Property. The Borrower and its Subsidiaries will own or
hold all easements, rights-of-way, licenses in respect of real property and
similar rights as are necessary for the acquisition, ownership and operation of
the Stations. Each of the Borrower and its Subsidiaries has good title to its
properties and assets free and clear of all Liens, except for Liens permitted
under Section 9.06 hereof. Set forth on Schedule VI attached hereto is a list,
as of the Restatement Effective Date (after giving effect to the consummation of
the River City Non-License Acquisition), of all of the real property interests
held by the Borrower and its Subsidiaries, indicating in each case whether the
respective Property is owned or leased, the identity of the owner or lessee and
the location of the respective Property.
8.17 Ancillary Documents. The Borrower has heretofore
delivered to the Agent a true and complete copy of the Ancillary Documents, in
each case as in effect on the date hereof, and each of the same is in full force
and effect and no default of any
Credit Agreement
- 104 -
Obligor party thereto of any of the provisions thereof is in existence on the
date hereof.
8.18 Film Obligations. Set forth in Schedule V hereto is a
complete and correct list as at March 31, 1996 (on a pro forma basis after
giving effect to the River City Non-License Acquisition), setting forth for each
Station on a program-by- program basis, the respective Film Cash Payments to be
made in each fiscal year during the period commencing on January 1, 1996 through
and including December 31, 2003.
8.19 Capitalization. The authorized capital stock of the
Borrower consists, on the date hereof, of 75,000,000 shares consisting of (a)
35,000,000 shares of Class A Common Stock, par value $.01 per share, of which
6,273,000 shares are duly and validly issued and outstanding, each of which
shares is fully paid and nonassessable, (b) 35,000,000 shares of Class B Common
Stock, par value $.01 per share, of which 28,476,981 shares are duly and validly
issued and outstanding, each of which shares is fully paid and nonassessable,
(c) 5,000,000 shares of Series A Exchangeable Preferred Stock, par value $.01
per share, of which 4,181,818 shares are duly and validly issued and
outstanding, each of which shares is fully paid and nonassessable. As of the
date hereof 0.000797% of such issued and outstanding shares of Class A Common
Stock are owned beneficially and of record by the Smith Brothers and 100% of
such issued and outstanding shares of Class B Common Stock are owned
beneficially and of record, directly or indirectly, by the Smith Brothers. As of
the date hereof, (i) except for (x) the Designated Employee Stock Option Plan
and (y) Equity Rights created pursuant to the River City Acquisition Documents,
there are no outstanding Equity Rights with respect to the Borrower and (ii)
except for the right of the holders of the Seller Stock (or of any such stock
converted into the Borrower's Class A Common Stock) to require the Borrower to
repurchase such Seller Stock (or Class A Common Stock), there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any of its Subsidiaries.
8.20 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Basic
Documents or included herein or therein or delivered pursuant hereto or
Credit Agreement
- 105 -
thereto, when taken as a whole do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Borrower and its Subsidiaries to the Agent and the Lenders in connection with
this Agreement and the other Basic Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known
to the Borrower that could have a Material Adverse Effect that has not been
disclosed herein, in the other Basic Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.21 Tax Identification Numbers. The tax identification number
for each Obligor on the date hereof is correctly set forth opposite the name of
such Obligor on Schedule VII hereto.
8.22 Program Services Agreements. Schedule VIII hereto is a
complete and correct list, as of the date of this Agreement, of (a) each
agreement pursuant to which the Borrower or any of its Subsidiaries has the
right to program and sell advertising on a substantial portion of the inventory
of broadcast time of any Station and (b) any such agreement that will be
assigned to, or entered into by, the Borrower or any of its Subsidiaries, in
connection with the River City Non-License Acquisition.
8.23 Options. Schedule IX hereto is a complete and correct
list, as of the date of this Agreement, of (a) each option agreement pursuant to
which the Borrower or any of its Subsidiaries has the right to acquire licenses,
permits, authorizations or certificates to construct, own, operate or promote
any television or radio broadcasting station and (b) any such option agreement
that will be assigned to, or entered into by, the Borrower or any of its
Subsidiaries, in connection with the River City Non-License Acquisition.
8.24 Asset Use and Operating Agreements. Schedule X hereto is
a complete and correct list, as of the date of this Agreement, with respect to
each Owned Station, of the agreement between the Subsidiary of the Borrower that
operates such Owned Station and a License Subsidiary with respect to such Owned
Station.
Credit Agreement
- 106 -
Section 9. Covenants of the Obligors. The Obligors covenant
and agree with the Lenders and the Agent that, so long as any Commitment, Loan
or Letter of Credit Liability is outstanding and until payment in full of all
amounts payable by the Borrower hereunder:
9.01 Financial Statements. The Borrower shall deliver to the
Agent (with sufficient copies for each Lender):
(a) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Borrower, consolidated and consolidating statements of income, retained
earnings and cash flow of the Borrower and its Consolidated
Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated and consolidating balance sheets as at the end of such
period, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of the Borrower, which
certificate shall state that said financial statements present fairly,
in all material respects, the consolidated financial condition and
results of operations of the Borrower and its Consolidated
Subsidiaries, and the respective individual unconsolidated financial
condition and results of operations of the Borrower and of each of its
Consolidated Subsidiaries, in each case in accordance with generally
accepted accounting principles, consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 110 days
after the end of each fiscal year of the Borrower, consolidated and
consolidating statements of income, retained earnings and cash flow of
the Borrower and its Consolidated Subsidiaries for such year and the
related consolidated and consolidating balance sheets as at the end of
such year, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the preceding
fiscal year, and accompanied (i) in the case of said consolidated
statements and balance sheet, by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements present
fairly, in all material respects, the consolidated financial condition
and results of operations of the Borrower and its Consolidated
Subsidiaries as at the end of, and for, such fiscal year in accordance
with generally accepted accounting
Credit Agreement
- 107 -
principles, and a certificate of such accountants stating that, in
making the examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default, and (ii) in
the case of said consolidating statements and balance sheets, by a
certificate of a senior financial officer of the Borrower, which
certificate shall state that said consolidating financial statements
fairly present the respective individual unconsolidated financial
condition and results of operations of the Borrower and of each of its
Consolidated Subsidiaries, in each case in accordance with generally
accepted accounting principles, consistently applied, as at the end of,
and for, such fiscal year;
(c) as soon as available, and in any event within 30 days (on
a Station-by-Station basis) after the end of each monthly accounting
period in each fiscal year of the Borrower, a statement of EBITDA for
such monthly accounting period and for the beginning of such fiscal
year to the end of such monthly accounting period, setting forth, in
each case in comparative form the corresponding figures for the
corresponding monthly accounting period and period in the preceding
fiscal year;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any
(including, without limitation, reports on Forms 10-Q and 10-K), which
the Borrower or any of its Subsidiaries shall have filed with the
Securities and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(e) promptly upon the furnishing thereof generally to the
holders of any class or issue of securities of the Borrower (or to any
of their respective agents or trustees) copies of all financial
statements, reports, proxy statements, notices and other communications
so furnished; and promptly upon the receipt thereof by the Borrower,
copies of any notices, reports or other communications from any holder
of any Preferred Stock, any In-Kind Preferred Stock or any Senior
Subordinated Notes (or any agent or trustee therefor);
(f) as soon as possible, and in any event within ten days
after the Borrower knows or has reason to believe that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan have occurred or exist, a statement signed by a
senior financial officer of the Borrower setting forth details
respecting such event or condition and the action, if any, which the
Borrower or its
Credit Agreement
- 108 -
ERISA Affiliate proposes to take with respect thereto (and a copy of
any report or notice required to be filed with or given to PBGC by the
Borrower or an ERISA Affiliate with respect to such event or
condition):
(i) any reportable event, as defined in Section 4043(c)
of ERISA and the regulations issued thereunder, with respect
to a Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (provided that
a failure to meet the minimum funding standard of Section 412
of the Code or Section 302 of ERISA shall be a reportable
event regardless of the issuance of any waivers in accordance
with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any
Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the
Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Borrower or
any ERISA Affiliate under Section 4201 or 4204 of ERISA from a
Multiemployer Plan, or the receipt by the Borrower or any
ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if the Borrower or an ERISA
Affiliate fails to timely provide security to such Plan in
accordance with the provisions of said Sections;
Credit Agreement
- 109 -
(g) as soon as available and in any event within 45 days after
the end of each of the quarterly fiscal periods of each fiscal year of
the Borrower, a schedule setting forth for each Station, the respective
Film Cash Payments for such Station for each fiscal year commencing
with the then current fiscal year through and including the fiscal year
ending December 31, 2003;
(h) promptly after any Obligor knows or has reason to believe
that any Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Borrower
has taken and proposes to take with respect thereto;
(i) promptly following delivery thereof to or by the Borrower
or any of its Subsidiaries, copies of all material notices, reports,
approvals and other material communications that are received by the
Borrower or any of its Subsidiaries from the FCC or filed by the
Borrower or any of its Subsidiaries with the FCC;
(j) promptly following delivery thereof to or by the Borrower
or any of its Subsidiaries, copies of all material notices (including,
without limitation, notices of default), financial statements, reports,
approvals and other material communications that are received by the
Borrower or any of its Subsidiaries from or on behalf of any Material
Third- Party Licensee or Affiliate of any Material Third-Party Licensee
or furnished by the Borrower or any of its Subsidiaries to any Material
Third-Party Licensee or Affiliate of any Material Third-Party Licensee;
(k) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower,
any of its Subsidiaries, any Station, any Material Third-Party Licensee
or any Person that owns the capital stock (or other equity ownership
interest) of any Material Third-Party Licensee (including, without
limitation, any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as any Lender or the
Agent may reasonably request.
The Borrower will furnish to the Agent (with sufficient copies for each Lender),
at the time it furnishes each set of financial statements pursuant to paragraph
(a) or (b) above, a certificate of a senior financial officer of the Borrower
(i) to the effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in reasonable detail
and describing the action that the Borrower has
Credit Agreement
- 110 -
taken and proposes to take with respect thereto) and (ii) setting forth in
reasonable detail the computations necessary to determine whether the Borrower
is in compliance with Sections 9.07(e), 9.09, 9.10, 9.11, 9.12, 9.13, 9.14, 9.15
and 9.16 hereof as of the end of the respective quarterly fiscal period or
fiscal year. In addition, the Borrower shall in each of its fiscal years
(commencing with its fiscal year ending 1996) as soon as available and in any
event on or before December 31 of each fiscal year, deliver to each Lender, a
budget for the next following fiscal year setting forth anticipated income,
expense and capital expenditure items for each quarter during such fiscal year
and, on a date to be mutually agreed upon with the Agent, arrange for its
relevant officers to be present at a meeting with the Lenders for the purpose of
discussing its business, prospects and financial affairs (including its
near-term projections) with the Lenders.
9.02 Litigation. The Borrower will promptly give to the Agent
(with sufficient copies for each Lender) notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings (collectively, "Proceedings"), affecting the Borrower or any
of its Subsidiaries or any of their respective assets, franchises or licenses
(including, without limitation, the Broadcast Licenses for Owned Stations)
except Proceedings which, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect or result in
the loss of a franchise or license (including, without limitation, any Broadcast
License for an Owned Station other than an Immaterial Broadcast License). The
Borrower will promptly give to the Agent (with sufficient copies for each
Lender) notice of all Proceedings affecting the Material Third-Party Licensee
for a Contract Station or any Broadcast Licenses for such Contract Station
except Proceedings which, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect or result in
the loss of any Broadcast License (other than an Immaterial Broadcast License)
for such Contract Station.
9.03 Existence, Etc. The Borrower will, and will cause each of
its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges and franchises (including, without
limitation, the Broadcast Licenses, but excluding Immaterial Broadcast
Licenses, for Owned Stations) (provided that nothing in this Section
9.03 shall prohibit any transaction expressly permitted under Section
9.05 hereof);
Credit Agreement
- 111 -
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements would (either individually
or in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted; and
(e) permit representatives of any Lender or the Agent, during
normal business hours, to examine, copy and make extracts from its
books and records, to inspect its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Agent (as the case may be).
9.04 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage or liability of the kinds and in the
amounts customarily maintained by such corporations and maintain such other
insurance as is usually carried by such corporations, provided that the Borrower
will in any event maintain (with respect to itself, each of its Subsidiaries and
each Owned Station), and will cause the Material Third-Party Licensee for each
Contract Station (or the Person that owns the capital stock (or other equity
ownership interest) of such Material Third-Party Licensee) to maintain (with
respect to itself and such Contract Station), casualty insurance and insurance
against claims and damages with respect to defamation, libel, slander, privacy
or other similar injury to person or reputation (including, without limitation,
misappropriation of personal likeness), in such amounts as are then customary
for Persons engaged in the same or similar business similarly situated. The
Borrower shall provide to the Agent at the same time it furnishes its annual
financial statements under Section 9.01(b) hereof a certificate of insurance
comparable in scope to the certificate furnished under Section 7.01(t)(i) hereof
demonstrating compliance with this Section 9.04.
Credit Agreement
- 112 -
9.05 Prohibition of Fundamental Changes.
----------------------------------
(a) The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of, or
be a party to any acquisition of, any Person, or acquire any option to make any
such acquisition, except for purchases of inventory, programming rights and
other Property to be sold or used in the ordinary course of business,
Investments permitted under Section 9.08 hereof, Capital Expenditures permitted
under Section 9.12 hereof and the River City Non-License Acquisition.
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, without the prior written consent of the Majority Lenders,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or a substantial part of its business or Property,
whether now owned or hereafter acquired including, without limitation,
receivables and leasehold interests, but excluding (i) any inventory or other
Property sold or disposed of in the ordinary course of business and on ordinary
business terms and (ii) obsolete or worn-out Property, tools or equipment no
longer used or useful in its business so long as the amount thereof sold in any
single fiscal year by the Borrower and its Subsidiaries shall not have a fair
market value in excess of $250,000.
(d) Notwithstanding the foregoing provisions of this Section
9.05:
(i) the Borrower and its Subsidiaries may consummate any River
City License Acquisition or any Approved Acquisition (each, a "Subject
Acquisition") provided that:
(w) both immediately prior to such Subject
Acquisition and, after giving effect thereto, no Default shall
have occurred and be continuing;
(x) each assignment or transfer of control of
Broadcast Licenses to the Borrower or any of its Subsidiaries
shall have been approved by (A) a Final FCC Order, in the case
of the consummation of the exercise of any of the WPTT
Conversion Option, the Glencairn Options or the WDBB Option,
or (B) an Initial FCC Order, in the case of any Subject
Acquisition other than those referred to in the preceding
clause (A) and,
Credit Agreement
- 113 -
if the Agent or the Majority Lenders shall have so requested,
the Agent shall have received an opinion of Fisher Wayland
Cooper Leader and Zaragoza L.L.P. (or other counsel
satisfactory to the Agent or the Majority Lenders, as the case
may be, in its (or their) reasonable judgment) to the effect
that such transfer shall have been so approved by a Final FCC
Order or an Initial FCC Order, as the case may be, and that
such Broadcast Licenses have been validly assigned to the
Borrower or such Subsidiary;
(y) (A) (in the case of (1) the WYZZ Acquisition, (2)
the acquisition of assets (or of the capital stock (or other
equity ownership interest) of the Person that owns such
assets) and assumption of liabilities relating to WWWS(AM) and
WGR(AM), Buffalo, New York, (3) the acquisition of assets (or
of the capital stock (or other equity ownership interest) of
the Person that owns such assets) and assumption of
liabilities relating to of WXWX-FM, Easley, South Carolina and
WXWX-FM, Greer, South Carolina and (4) the acquisition of
assets (or of the capital stock (or other equity ownership
interest) of the Person that owns such assets) and assumption
of liabilities relating to WPMR- AM and WKRF-FM, Tobyhanna,
Pennsylvania) no later than twenty Business Days prior to the
consummation of such acquisition, the Borrower shall have
delivered to the Agent drafts or executed counterparts of such
of the respective agreements or instruments pursuant to which
such acquisition is to be consummated (together with any
related management, non-compete, employment, option or other
material agreements), any schedules or other material
ancillary documents to be executed or delivered in connection
therewith, all of which shall be satisfactory to the Agent in
form and substance and (B) promptly following request
therefor, copies of such other information or documents
relating to any Subject Acquisition as the Agent or any Lender
or Lenders (through the Agent) shall have reasonably
requested; and
(z) on the date on which the Borrower or any of its
Subsidiaries pays any WSYX Option Extension Payment or the
WSYX Sale Price Differential, the Borrower shall furnish to
the Lenders a certificate showing calculations (after giving
effect to such payment) in reasonable detail that demonstrate
that such payment will not result in a Default under Section
9.11 hereof;
Credit Agreement
- 114 -
(ii) the Borrower or any of its Subsidiaries may make any
Other Acquisition provided that:
(s) the Aggregate Consideration for all Other
Acquisitions (other than the acquisition of assets or capital
stock (or other equity ownership interest) of any Person
pursuant to an exchange permitted by Section 9.05(d)(iv)(y)
hereof and the consummation of Other Acquisitions with the
proceeds of dispositions pursuant to Section 9.05(d)(iv)(x)
hereof) shall not exceed the sum of (A) aggregate amount of
Net Available Proceeds of all Equity Issuances permitted by
Section 9.26 hereof received by the Borrower after the date
hereof and on or prior to the date of consummation of such
Other Acquisition, plus (B) 25% of Excess Cash Flow for each
fiscal year of the Borrower ending before the date of
consummation of such Other Acquisition (to the extent not
otherwise applied by the Borrower in accordance with the
provisions of this Agreement) plus (C) the aggregate unused
amount of the Revolving Credit Commitments in effect at the
time of such Other Acquisition (before giving effect to any
borrowing thereunder to finance such Other Acquisition) minus
(D) $25,000,000;
(t) both immediately prior to such Other Acquisition
and, after giving effect thereto, no Default shall have
occurred and be continuing;
(u) each assignment or transfer of control of
Broadcast Licenses to the Borrower or any of its Subsidiaries
pursuant to any such Other Acquisition shall have been
approved by an order of the FCC that is no longer subject to
reconsideration or review by the FCC or by any court or
administrative body and, if the Agent or the Majority Lenders
shall have so requested, the Agent shall have received an
opinion of Fisher Wayland Cooper Leader and Zaragoza L.L.P.
(or other counsel reasonably satisfactory to the Agent or the
Majority Lenders, as the case may be) to the effect that such
transfer shall have been so approved by a final order of the
FCC and that such Broadcast Licenses have been validly
assigned to the Borrower or such Subsidiary;
(v) the ratio of Total Indebtedness on the date that
such Other Acquisition is consummated (calculated after giving
effect to the borrowings and prepayments hereunder to be made
on such date) to EBITDA for the period of four fiscal quarters
of the Borrower ending
Credit Agreement
- 115 -
on or most recently ended prior to such date (calculated on a
pro forma basis as if such Other Acquisition had been
consummated on the first day of such period) will not be
greater than the lesser of (x) 6.50 to 1 and (y) such ratio as
shall be required by Section 9.14 hereof on such date;
(w) on the date that such Other Acquisition is
consummated, the Borrower shall furnish to the Lenders a
certificate showing calculations (after giving effect to
borrowings and prepayments hereunder to be made on such date
and calculated on a pro forma basis as if such Other
Acquisition had been consummated on the first day of the
period of four fiscal quarters of the Borrower ending on or
most recently ended prior to such date) in reasonable detail
that demonstrate that such purchase will not result in a
Default under any of (A) Sections 9.10, 9.11, 9.12, 9.13 or
9.15 hereof and (B) clause (v) of this Section 9.05(d)(ii);
(x) (A) no later than twenty Business Days prior to
the date that such Other Acquisition is consummated, the
Borrower shall have delivered to the Agent drafts or executed
counterparts of such of the respective agreements or
instruments (including, without limitation, Program Services
Agreements) pursuant to which such Other Acquisition is to be
consummated (together with any related management,
non-compete, employment, option or other material agreements),
any schedules or other material ancillary documents to be
executed or delivered in connection therewith, all of which
shall be satisfactory in form and substance to the Agent (or,
if the portion of the Aggregate Consideration for such Other
Acquisition payable to extend and exercise any option acquired
in connection with such Other Acquisition exceeds 20% of the
Aggregate Consideration payable in connection with such Other
Acquisition, the Majority Lenders) and sufficient to
demonstrate compliance by the Borrower with the requirements
of this Section 9.05(d)(ii) and (B) promptly following request
therefor, copies of such other information or documents
relating to such Other Acquisition as the Agent or any Lender
or Lenders (through the Agent) shall have reasonably
requested;
(y) in connection with each Other Acquisition in
which the Borrower or any of its Subsidiaries acquires real
estate (other than by means of an office lease), the Borrower
shall (if and to the extent requested by the Agent or the
Majority Lenders) have undertaken
Credit Agreement
- 116 -
environmental surveys and assessments prepared by a firm of
licensed engineers (familiar with the identification of toxic
and hazardous substances) in form and substance satisfactory
to the Agent and Majority Lenders and having results
satisfactory to the Agent and Majority Lenders; provided that
neither the Agent nor any Lender shall have any responsibility
to the Borrower or any Subsidiary or any other Person arising
out of or relating to the scope or results of such
environmental due diligence; and
(z) if requested by the Agent or the Majority Lenders
with respect to any agreement (A) entered into by any Obligor
and any other Person in connection with such Other Acquisition
or (B) to be transferred to any Obligor in connection with
such Other Acquisition, which agreement is determined by the
Agent or the Majority Lenders, as the case may be, to be
material (a "Material Agreement"), the Borrower shall cause
such Obligor and such other Person to execute and deliver to
the Agent a Consent and Agreement with respect to such
Material Agreement;
(iii) the Borrower or any of its Subsidiaries may sell to Glencairn
or a Subsidiary of Glencairn the Broadcast Licenses for any one or more
of WTTE-TV, WFBC-TV or KRRT-TV, and any Property required pursuant to
the rules and regulations of the FCC to be sold in connection with the
transfer of such Broadcast Licenses, provided that (x) any such sale
shall be for an amount not less than 80% of the appraised value (as
determined by an appraiser satisfactory to the Agent and the Borrower
and experienced in the appraisal of properties similar to those being
so sold), which amount shall be payable in cash, (y) Glencairn or such
Subsidiary of Glencairn, as the case may be, shall enter into a Program
Services Agreement with a Subsidiary of the Borrower with respect to
each Station the Broadcast Licenses of which are so sold and (z)
Glencairn or such Subsidiary of Glencairn, as the case may be, shall
enter into a Consent and Agreement with the Agent relating to such
Program Services Agreement;
(iv) the Borrower or any of its Subsidiaries may dispose of
substantially all of the assets relating to any Owned Station that is a
radio broadcasting station (or the capital stock of the Subsidiary of
the Borrower that owns such assets if such Subsidiary does not own any
Property relating to any other Owned Station that is a television
broadcasting station), provided that both immediately prior
Credit Agreement
- 117 -
to such disposition and, after giving effect thereto, no Default shall
have occurred and be continuing and:
(x) such disposition is a sale to any Person for cash
in an amount not less than the fair market value of such
assets and (A) the EBITDA Percentage attributable to such
assets together with the EBITDA Percentage attributable to all
other assets sold pursuant to this clause (x) or exchanged
pursuant to the following clause (y) during the immediately
preceding twelve-month period (or, if shorter, the period from
the Restatement Effective Date) shall not exceed 5% and (B)
the EBITDA Percentage attributable to all assets of the
Borrower and its Subsidiaries sold pursuant to this clause (x)
or exchanged pursuant to the following clause (y) since the
Restatement Effective Date shall not exceed 15%, (C) the
Borrower shall have furnished to the Lenders, not later than
the tenth Business Day preceding the date of such disposition
a certificate in form and detail satisfactory to the Agent
stating (and setting forth calculations in reasonable detail
demonstrating) the EBITDA Percentage attributable to the
assets so sold and (D) promptly following request therefor,
copies of such other information or documents relating to such
disposition as the Agent of any Lender or Lenders (through the
Agent) shall have reasonably requested; or
(y) such disposition is an exchange, with any Person,
of such assets for assets owned by such Person (or the capital
stock (or other equity ownership interest) of such Person)
comprising a radio broadcasting station of equal or greater
value, as determined in good faith by the Board of Directors
of the Borrower or such Subsidiary and, (A) the EBITDA
Percentage attributable to such assets of the Borrower or such
Subsidiary together with the EBITDA Percentage attributable to
all other assets of the Borrower or any of its Subsidiaries
sold pursuant to the foregoing clause (x) or exchanged
pursuant to the this clause (y) during the immediately
preceding twelve-month period (or, if shorter, the period from
the Restatement Effective Date) shall not exceed 5% and (B)
the EBITDA Percentage attributable to all assets of the
Borrower and its Subsidiaries sold pursuant to the foregoing
clause (x) or exchanged pursuant to this clause (y) since the
Restatement Effective Date shall not exceed 15%, (C) the
acquisition of such assets of such Person pursuant to such
exchange shall comply with the provisions of clause (d)(ii) of
this Section 9.05 and
Credit Agreement
- 118 -
(D) the Borrower shall have furnished to the Lenders, not
later than the tenth Business Day preceding the date of such
disposition a certificate in form and detail satisfactory to
the Agent stating (and setting forth calculations in
reasonable detail demonstrating) the EBITDA Percentage
attributable to the assets so sold;
provided that, notwithstanding the foregoing clauses (x) and (y), no
more than one-half of the number of radio broadcasting stations that
may be acquired pursuant to Subject Acquisitions shall be disposed of
pursuant this clause (iv).
(v) the Borrower or any of its Subsidiaries may dispose of
Properties for fair market value, provided that the aggregate fair
market value of Properties disposed of by the Borrower and its
Subsidiaries in any fiscal year of the Borrower may not exceed
$1,000,000;
(vi) the Borrower or any of its Subsidiaries may dispose of
Properties acquired by any of them in the River City Non-License
Acquisition that are substantially duplicative of Properties
theretofore owned by any of them, provided that (x) any such
disposition shall be for fair market value and (y) the aggregate fair
market value of all such Properties disposed of the Borrower and its
Subsidiaries after the date hereof may not exceed $2,500,000;
(vii) the Borrower or any of its Subsidiaries may sell the WSTR Note
to any Person (including, without limitation, any Affiliate) for cash
in an amount not less than (x) $4,750,000 plus (y) the aggregate amount
of unpaid interest on the WSTR Note accrued after the acquisition by
the Borrower or any of its Subsidiaries of the WSTR Note minus (z) the
aggregate amount of principal of the WSTR Note received by the Borrower
and its Subsidiaries after such acquisition; and
(viii) the Borrower or any of its Subsidiaries may sell in accordance
with Section 10.4 of the Baker Employment Agreement to Barry Baker or
to any Person designated by Barry Baker under said Section 10.4 the
Property of the Borrower or such Subsidiary required to be so sold
pursuant to said Section 10.4, provided that any such sale shall be for
cash in an amount not less than the fair market value of the Property
so sold.
Credit Agreement
- 119 -
9.06 Limitation on Liens. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or any of its
Subsidiaries, as the case may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
and Liens securing judgments but only to the extent for an amount and
for a period not resulting in an Event of Default under Section 10(h)
hereof;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(g) rights of tenants, as tenants only, under leases of real
property acquired on the date hereof as part of the River City
Non-License Acquisition, which rights do not materially detract from
the value of the real property subject thereto or interfere with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries performed thereon;
Credit Agreement
- 120 -
(h) Liens on the capital stock of Glencairn owned by Carolyn
C. Smith acquired by the Borrower or any of its Subsidiaries pursuant
to the exercise of the Glencairn Options, to the extent such Liens are
in existence on the date of such acquisition;
(i) additional Liens upon real and/or personal Property (other
than the partnership interest of FSF-TV in the Auburn Tower
Partnership, a North Carolina general partnership) created after the
date hereof, provided that the aggregate Indebtedness secured thereby
and incurred on and after the date hereof shall not exceed $1,000,000
in the aggregate at any one time outstanding; and
(j) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
9.07 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in
Schedule I hereto;
(c) Indebtedness of the Borrower evidenced by senior
subordinated notes in an aggregate principal amount not exceeding
$200,000,000 at any one time outstanding and subordinated guarantees
thereof by Subsidiary Guarantors (such Indebtedness and guarantees
being collectively referred to as the "Additional Senior Subordinated
Notes"), provided that (i) such notes are issued at not less than 97%
of par, (ii) such notes and guarantees shall be unsecured and such
notes shall bear interest at a fixed rate not greater than 12% per
annum on the face amount thereof, (iii) no scheduled payments,
prepayments, redemptions or sinking fund or like payments on such notes
shall be required before the tenth anniversary of the date of issuance
of such notes, (iv) the terms and conditions of such notes shall not be
less favorable to the Borrower, its Subsidiaries, the Lenders and the
Agent than the terms and conditions of the 1995 Senior Subordinated
Note Indenture and the 1995 Senior Subordinated Notes, (v) the proceeds
of such Indebtedness shall be used solely (x) to finance the
consummation of the WSYX Acquisition and transaction expenses in
connection therewith and/or (y) to prepay the Loans and reduce the
Credit Agreement
- 121 -
Commitments pursuant to Section 2.09(b)(iii) hereof and (vi) no Default
shall have occurred and be continuing at the time of incurrence of such
Indebtedness or would result therefrom;
(d) Indebtedness of Subsidiaries of the Borrower to the
Borrower or to other Subsidiaries of the Borrower;
(e) additional Indebtedness of the Borrower in an aggregate
principal amount not exceeding $50,000,000 at any one time outstanding,
provided (i) that no Default shall have occurred and be continuing at
the time of incurrence of such Indebtedness or would result therefrom
and (ii) such Indebtedness shall be unsecured;
(f) Subordinated Film Indebtedness of the Borrower in an
aggregate principal amount not to exceed $10,000,000 at any one time
outstanding, provided that the terms and conditions of each agreement
or instrument evidencing or governing such Indebtedness shall be
satisfactory to the Majority Lenders;
(g) Guarantees of Indebtedness of GDLP incurred in connection
with Property used by the Borrower and its Subsidiaries in an aggregate
principal amount (including all such Indebtedness, if any, permitted by
Section 9.07(b) hereof) not exceeding $2,000,000 at any one time
outstanding; and
(h) Indebtedness of the Borrower evidenced by senior
subordinated notes and subordinated guarantees thereof by Subsidiary
Guarantors (such Indebtedness and guarantees being collectively
referred to as the "Converted Senior Subordinated Notes"), provided
that (i) such notes and guarantees shall be unsecured and such notes
shall bear interest at a fixed rate not greater than 15% per annum,
(ii) no scheduled payments, prepayments, redemptions or sinking fund or
like payments on such notes shall be required before the tenth
anniversary of the date of issuance of the Preferred Stock, (iii) the
terms and conditions of such notes shall not be less favorable to the
Borrower, its Subsidiaries, the Lenders and the Agent than the terms
and conditions of the 1995 Senior Subordinated Note Indenture and the
1995 Senior Subordinated Notes, (iv) the Borrower shall issue such
notes pursuant to the conversion of all, but not less than all, of the
Preferred Stock and the In-Kind Preferred Stock into such notes in an
aggregate principal amount not exceeding the aggregate liquidation
preference of the Preferred Stock and the In- Kind Preferred Stock so
converted, (v) both immediately
Credit Agreement
- 122 -
prior to such conversion of the Preferred Stock and the In- Kind
Preferred Stock and, after giving effect thereto, no Default shall have
occurred and be continuing and (vi) such conversion shall not be made
prior to January 1, 1997.
9.08 Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) operating deposit accounts with banks;
(b) Permitted Investments;
(c) Investments by the Borrower and its Subsidiaries in
capital stock of Subsidiaries of the Borrower to the extent outstanding
on the date of the financial statements of the Borrower and its
Consolidated Subsidiaries referred to in Section 8.02 hereof or
required by Section 9.25 hereof and advances by the Borrower and its
Subsidiaries to Subsidiary Guarantors in the ordinary course of
business permitted to be incurred by Section 9.07(d) hereof;
(d) Investments outstanding on the Restatement Effective Date
(after giving effect to the consummation of the River City Acquisition)
and identified in Schedule III hereto;
(e) the formation of special purpose Wholly Owned Subsidiaries
of the Borrower for the acquisition of capital stock of or partnership
interests in Persons resulting in such Persons becoming Wholly Owned
Subsidiaries of the Borrower, in each case for the purpose of enabling
the Borrower and its Subsidiaries to consummate acquisitions permitted
by Section 9.05 hereof;
(f) Guarantees by Subsidiary Guarantors of Indebtedness of the
Borrower to the extent such guarantees are expressly permitted by
Section 9.07 hereof;
(g) Guarantees permitted by Section 9.07(g) hereof;
(h) the conversion by the Borrower of the outstanding
principal amount of the WPTT Convertible Debenture into non-voting
common stock of WPTT in accordance with the terms thereof;
(i) Investments by the Borrower in Affiliates in an amount up
to but not exceeding $125,000,000 in the aggregate provided that (x) no
Default shall have occurred and be continuing at the time of the making
of such Investment or
Credit Agreement
- 123 -
would result therefrom, (y) at the time of the making of such
Investment, the Total Indebtedness Ratio shall not be greater than the
lesser of (A) 6.40 to 1 and (B) such ratio as shall be required by
Section 9.14 hereof at the time of the making of such Investment and
(z) each such Affiliate shall be engaged solely in lines of business
activity that would be permitted by Section 9.19 hereof if such
Affiliate were an Obligor hereunder; and
(j) additional Investments in an amount up to but not
exceeding $10,000,000 in the aggregate, provided that no Default shall
have occurred and be continuing at the time of the making of such
Investment or would result therefrom.
9.09 Dividend Payments. The Borrower will not, and will not
permit any of its Subsidiaries to declare or make any Dividend Payment at any
time, except that, so long as no Default exists at the time of making such
Dividend Payment or would result therefrom:
(a) the Borrower may pay to any Person (including, without
limitation, an Affiliate) dividends in cash in any of its fiscal years
ending after December 31, 1996 provided that (i) the aggregate amount
of such dividends plus the aggregate amount of Additional Corporate
Expense paid in such fiscal year does not exceed 25% of Excess Cash
Flow for its fiscal year immediately preceding the fiscal year in which
such dividends and Additional Corporate Expense are paid (to the extent
that such 25% of Excess Cash Flow has not otherwise been applied by the
Borrower in accordance with the provisions of this Agreement), and (ii)
such dividend may not be paid earlier than three Business Days after
the prepayment of Loans required by Section 2.09(c) hereof in such
fiscal year of payment;
(b) the Borrower may pay dividends in cash on the Preferred
Stock and the In-Kind Preferred Stock provided that at the time of the
making of such Dividend Payment, the Total Indebtedness Ratio shall not
be greater than the lesser of (i) 5.80 to 1 and (ii) such ratio as
shall be required by Section 9.14 hereof at the time of the making of
such Dividend Payment;
(c) the Borrower may convert any Preferred Stock into
Convertible Senior Notes in accordance with Section 9.07(h) hereof; and
(d) the Borrower may make Equity Issuances permitted by
Section 9.26 hereof.
Credit Agreement
- 124 -
9.10 Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio on any date to be less than the ratio set forth below
opposite the period during which such date falls:
Period Ratio
------ -----
From the Restatement Effective
Date through December 30, 1996 1.60 to 1
From December 31, 1996
through December 30, 1997 1.80 to 1
From December 31, 1997
through December 30, 1998 2.00 to 1
From December 31, 1998
and at all times thereafter 2.20 to 1
9.11 Fixed Charges Ratio. The Borrower will not permit the
Fixed Charges Ratio to be less than or equal to 1.05 to 1 at any time.
9.12 Capital Expenditures. The Borrower will not permit the
aggregate amount of Capital Expenditures to exceed (a) for its fiscal year
ending in 1996, $30,000,000 and (b) for any of its fiscal years thereafter, 1.05
multiplied by the maximum aggregate amount of Capital Expenditures (excluding
Additional Capital Expenditures (as defined below)) permitted under this Section
9.12 for the immediately preceding fiscal year of the Borrower; provided that
the Borrower may permit additional Capital Expenditures ("Additional Capital
Expenditures") in an aggregate amount (whether in one or more fiscal years of
the Borrower) not exceeding $75,000,000, which Additional Capital Expenditures
shall be used by the Borrower and its Subsidiaries solely to finance the
conversion from an analog to a digital format of the television broadcasting
facilities and equipment owned by Borrower and its Subsidiaries.
9.13 Senior Indebtedness Ratio. The Borrower will not permit
the Senior Indebtedness Ratio on any date to be greater than the ratio set forth
below opposite the period during which such date falls:
Period Ratio
------ -----
From the Restatement Effective
Date through September 29, 1996 5.00 to 1
From September 30, 1996
Credit Agreement
- 125 -
through December 30, 1996 4.75 to 1
From December 31, 1996
through June 29, 1997 4.50 to 1
From June 30, 1997
through December 30, 1997 4.25 to 1
From December 31, 1997
through December 30, 1998 4.00 to 1
From December 31, 1998
through December 30, 1999 3.50 to 1
From December 31, 1999
and at all times thereafter 2.50 to 1
Notwithstanding the foregoing, if the Borrower shall have consummated the WSYX
Acquisition on or prior to March 31, 1997, the Senior Indebtedness Ratio for the
period from December 31, 1996 through June 29, 1997 may exceed 4.50 to 1 but
shall not exceed 4.75 to 1.
9.14 Total Indebtedness Ratio. The Borrower will not permit
the Total Indebtedness Ratio on any date to be greater than the ratio set forth
below opposite the period during which such date falls:
Period Ratio
------ -----
From the Restatement Effective
Date through September 29, 1996 6.90 to 1
From September 30, 1996
through December 30, 1996 6.60 to 1
From December 31, 1996
through June 29, 1997 6.25 to 1
From June 30, 1997
through December 30, 1997 5.90 to 1
From December 31, 1997
through December 30, 1998 5.50 to 1
From December 31, 1998
through December 30, 1999 5.00 to 1
From December 31, 1999
and at all times thereafter 4.00 to 1
Credit Agreement
- 126 -
Notwithstanding the foregoing, if the Borrower shall have consummated the WSYX
Acquisition on or prior to March 31, 1997, the Total Indebtedness Ratio for the
period from December 31, 1996 through June 29, 1997 may exceed 6.25 to 1 but
shall not exceed 6.50 to 1.
9.15 Film Cash Payments and Sports Rights Payments. The
Borrower will not permit the aggregate amount of the sum of Film Cash Payments
plus Sports Rights Payments to exceed the following respective amounts (or such
other amounts as the Borrower and the Agent may from time to time agree) for the
following respective periods:
Period Amount
------ ------
From the Restatement Effective
Date through December 31, 1996 $63,000,000
From January 1, 1997
through December 31, 1997 $69,000,000
From January 1, 1998
through December 31, 1998 $75,000,000
From January 1, 1999
through December 31, 1999 $85,000,000
From January 1, 2000
through December 31, 2000 $85,000,000
From January 1, 2001
through December 31, 2001 $85,000,000
From January 1, 2002
through December 31, 2002 $85,000,000
From January 1, 2003
through December 31, 2003 $85,000,000
The Borrower will not, and will not permit any of its Subsidiaries to, incur any
Film Obligations if the payment of the related Film Cash Payments, together with
the payment of all other Film Cash Payments related to Film Obligations then
outstanding, would result in a violation of the preceding sentence of this
Section 9.15 for any period. Neither the Borrower nor any of its Subsidiaries
shall purchase, redeem, retire or otherwise acquire for value, or set apart any
money for a sinking, defeasance or other analogous fund for, the purchase,
redemption, retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest
Credit Agreement
- 127 -
on, or any other amount owing in respect of, any Film Obligations, except for
(a) regularly scheduled payments in respect thereof required pursuant to the
instruments evidencing such Film Obligations and (b) with the consent of the
Agent, prepayments of Film Obligations not exceeding $15,000,000 after the date
hereof.
9.16 Corporate Expense. The Borrower will not permit Corporate
Expense to exceed $9,000,000 for its fiscal year ending December 31, 1996 or,
for any of its subsequent fiscal years thereafter, 3% of the Net Cash Revenue
for such subsequent fiscal year, except that the Borrower may permit additional
Corporate Expense ("Additional Corporate Expense") for any of its fiscal years
provided that (a) the aggregate amount of such Additional Corporate Expense plus
the aggregate amount of Dividend Payments made pursuant to Section 9.09(a) in
such fiscal year does not exceed 25% of Excess Cash Flow for its fiscal year
immediately preceding the fiscal year in which such Corporate Expense and such
Dividend Payments are paid (to the extent that such 25% of Excess Cash Flow has
not otherwise been applied by the Borrower in accordance with the provisions of
this Agreement), (b) such Additional Corporate Expense may not be paid earlier
than three Business Days after the prepayment of Loans required by Section
2.09(c) hereof in such fiscal year of payment and (c) no such Additional
Corporate Expense may be paid at any time if a Default exists or would result
therefrom.
9.17 Interest Rate Protection Agreements.
(a) The Borrower will obtain and maintain in full force and
effect from the date not later than the 45th day after the Restatement Effective
Date until no sooner than the second anniversary of the Restatement Effective
Date one or more Interest Rate Protection Agreements with one or more of the
Lenders (and/or with a bank or other financial institution having capital,
surplus and undivided profits of at least $500,000,000), which effectively
enables the Borrower (in a manner satisfactory to the Agent and at least one
Managing Agent), as at any date, to protect itself against three-month London
interbank offered rates plus the respective Applicable Margins for Eurodollar
Loans in effect at the time such Interest Rate Protection Agreements are
obtained exceeding (i) 9.5% per annum as to a notional principal amount at least
equal to the 66-2/3% of the sum of (i) the aggregate principal amount of Tranche
A Term Loans and Tranche C Term Loans scheduled to be outstanding from time to
time and (ii) 9.75% per annum as to a notional principal amount at least equal
to the 66-2/3% of the aggregate principal amount of Tranche B Term Loans
scheduled to be outstanding from time to time.
Credit Agreement
- 128 -
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, obtain or enter into any Interest Rate Protection Agreements
except as bona fide hedges against fluctuations in interest rates.
(c) Notwithstanding the foregoing clause (a), the Borrower
shall be permitted to modify the requirements under the Interest Rate Protection
Agreement with the consent of the Agent and at least one Managing Agent.
9.18 Subordinated Indebtedness. Neither the Borrower nor any
of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other analogous fund
for, the purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any other
amount owing in respect of, any Subordinated Indebtedness, except for (a)
prepayments on the Carolyn Smith Documents and the Julian Smith Documents in an
aggregate amount not exceeding $2,000,000 in any fiscal year of the Borrower and
(b) regularly scheduled payments of principal and interest in respect thereof
required pursuant to the instruments evidencing such Subordinated Indebtedness.
9.19 Lines of Business. The Borrower will not, nor will it
permit any of its Subsidiaries to, engage to any substantial extent in any line
or lines of business activity other than (a) the business of owning and
operating the Stations (and related retransmission facilities), (b) the
commercial utilization of frequencies licensed, granted or leased to the
Borrower or any of its Subsidiaries by the FCC, any other governmental authority
or any Person in connection with the television or radio broadcasting businesses
and (c) the production, development, sale, lease or other provision of equipment
and/or services to Persons engaged in the businesses relating to those referred
to in the preceding clause (b); provided that the Borrower shall not permit the
portion of EBITDA for any period derived from the business activity referred to
in the foregoing clause (a) to be less than 85% of EBITDA for such period. None
of the License Subsidiaries will engage in any line or lines of business
activity other than as expressly contemplated in its respective Asset Use and
Operating Agreement. The Borrower will cause all Broadcast Licenses for Owned
Stations at all times to be held in the name of the respective License
Subsidiary for the Owned Station being operated under authority of such
Broadcast Licenses. Notwithstanding the foregoing, CRESAP shall be permitted to
engage in the business referred to in Section 9.27(a) hereof.
Credit Agreement
- 129 -
9.20 Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Borrower will not, nor will it permit any of
its Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, guarantees and assumptions of obligations of an Affiliate);
provided that (i) any Affiliate who is an individual may serve as a director,
officer or employee of the Borrower or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity and (ii) the
Borrower and its Subsidiaries may enter into transactions (other than extensions
of credit by the Borrower or any of its Subsidiaries to an Affiliate) providing
for the leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary course of
business (it being understood and agreed that no Acquisition shall be deemed to
be in the ordinary course of business) if the monetary or business consideration
arising therefrom would be substantially as advantageous to the Borrower and its
Subsidiaries as the monetary or business consideration which would obtain in a
comparable transaction with a Person not an Affiliate.
9.21 Use of Proceeds. The Borrower will use the proceeds of
the Loans hereunder (a) to repay loans outstanding under the Existing Credit
Agreement, (b) to finance (i) the River City Non-License Acquisition, (ii) the
River City License Acquisitions, (iii) the Approved Acquisitions, (iv) Other
Acquisitions and (v) transaction costs in connection with all of the foregoing
and (c) for its and its Subsidiaries' general corporate purposes (in compliance
with all applicable legal and regulatory requirements); provided that neither
the Agent nor any Lender shall have any responsibility as to the use of any of
such proceeds.
9.22 Certain Obligations Respecting Subsidiaries. The Borrower
will, and will cause each of its Subsidiaries to, take such action from time to
time as shall be necessary to ensure that each of its Subsidiaries is a Wholly
Owned Subsidiary. Without limiting the generality of the foregoing, none of the
Borrower nor any of its Subsidiaries shall sell, transfer or otherwise dispose
of any shares of stock in any Subsidiary owned by them, nor permit any
Subsidiary to issue any shares of stock of any class whatsoever to any Person
(other than to the Borrower or another Obligor and except as aforesaid). In the
event that any such additional shares of stock shall be issued by any Subsidiary
(except as aforesaid), the respective Obligor agrees
Credit Agreement
- 130 -
forthwith to deliver to the Agent pursuant to the Security Agreement the
certificates evidencing such shares of stock, accompanied by undated stock
powers executed in blank and shall take such other action as the Agent shall
request to perfect the security interest created therein pursuant to the
Security Agreement. The Borrower will not permit any of its Subsidiaries to
enter into, after the date of this Agreement, any indenture, agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property.
9.23 Additional Subsidiary Guarantors. The Borrower will, and
will cause each of its Subsidiaries to, take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Borrower are
Subsidiary Guarantors (and, thereby, "Obligors") hereunder and to pledge and
grant to the Agent for the benefit of the Lenders a security interest in all of
its respective Property to secure its respective obligations under its
respective guarantees pursuant to documentation substantially to the effect of
the Security Documents, mutatis mutandis, and otherwise reasonably satisfactory
to the Lenders and the Agent. Without limiting the generality of the foregoing,
in the event that the Borrower or any of its Subsidiaries shall form or acquire
any new Subsidiary after the date hereof, the Borrower or the respective
Subsidiary will cause such new Subsidiary to become a "Subsidiary Guarantor"
(and, thereby, an "Obligor") hereunder and to pledge and grant to the Agent for
the benefit of the Lenders a security interest on all of its Property to secure
its respective obligations under its respective guarantees pursuant to
documentation substantially to the effect of the Security Documents, mutatis
mutandis, and otherwise reasonably satisfactory to the Lenders and the Agent and
to deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by each
Obligor pursuant to Section 7.01 hereof upon the Restatement Effective Date or
as any Lender or the Agent shall have requested.
9.24 Modifications of Certain Documents. Without the prior
written consent of the Majority Lenders, the Borrower will not, and will not
permit any of its Subsidiaries to, consent to any modification, supplement,
waiver or termination of any of the provisions of (a) any instrument evidencing
or governing any of the Film Cash Payments unless such instrument is modified,
supplemented or waived at no cost (including, but not limited to interest costs)
to the Borrower or any of its Subsidiaries, (b)
Credit Agreement
- 131 -
the WSTR Note, (c) the Ancillary Documents or (d) the River City Acquisition
Documents, except that the Borrower or any of its Subsidiaries may (i) amend any
of the Asset Use and Operating Agreements entered into prior to the date hereof
to cause the same to be substantially in the form of Exhibit G hereto and (ii)
amend any of the Program Services Agreements to extend the stated expiration
date thereof. The Borrower will not, and will not permit any of its Subsidiaries
to, designate any Indebtedness as Designated Senior Indebtedness or Designated
Guarantor Senior Indebtedness, in each case under and as defined in either
Senior Subordinated Note Indenture.
9.25 License Subsidiaries.
(a) Whenever the Borrower or any of its Subsidiaries acquires
any Broadcast License after the Restatement Effective Date, the Borrower shall
(without limiting its obligations under Section 9.23 hereof) cause such
acquisition to take place as follows in accordance with all applicable laws and
regulations, including, without limitation, pursuant to approvals from the FCC:
(i) each Broadcast License so acquired shall be transferred to and held by a
separate Wholly-Owned Subsidiary of the Borrower that is a License Subsidiary,
provided that (x) the Broadcast Licenses for one or more radio broadcasting
stations serving a single "Area of Dominant Influence" as determined by Arbitron
Company may be held by any one or more License Subsidiaries that do not hold any
Broadcast License for any one or more television broadcasting stations and (y)
the Broadcast Licenses for WTTV-TV, a television broadcasting station licensed
to Bloomington, Indiana and serving the Bloomington area, and for WTTK-TV, a
television broadcasting station licensed to Kokomo, Indiana and serving the
Kokomo area, may be held in a single License Subsidiary, (ii) the related
operating assets shall be transferred to and held by an operating company that
is a Subsidiary of the Borrower (an "Operating Subsidiary"), (iii) such License
Subsidiary and such Operating Subsidiary shall enter into a Asset Use and
Operating Agreement, (iv) the Borrower shall deliver or cause to be delivered to
the Agent in pledge under the Security Agreement all capital stock of such
License Subsidiary and such Operating Subsidiary and (v) the Borrower shall
furnish to the Agent such evidence as may be reasonably requested by the Agent
or any Lender that the foregoing transactions have been so effected.
(b) Notwithstanding anything herein to the contrary, the
Borrower shall not permit any License Subsidiary to:
(i) create, incur, assume or have outstanding any
Indebtedness or other liabilities or obligations except for
Credit Agreement
- 132 -
obligations under the Basic Documents and an Asset Use and Operating
Agreement;
(ii) own any right, franchise or other asset except for
Broadcast Licenses transferred to it by the Borrower of which it is a
direct, Wholly Owned Subsidiary and Broadcast Licenses acquired in the
ordinary course of business and rights under a Asset Use and Operating
Agreement;
(iii) enter into any transaction of merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution);
(iv) create, incur or permit to exist any Lien (other than
the Lien created by the Security Agreement) on or in respect of, or
sell, lease, assign, transfer or otherwise dispose of, any of its
rights, franchises or other assets;
(v) engage in any business other than holding Broadcasting
Licenses and entering into a Asset Use and Operating Agreement; or
(vi) make or hold any Investment.
(c) Notwithstanding anything in this Section 9.25 to the
contrary, the Borrower and the Subsidiary Guarantors shall not be obligated to
effect any transaction contrary to law or the rules, regulations or policies of
the FCC, and shall be permitted to unwind the transactions contemplated by this
Section 9.25 to the extent necessary to comply with a ruling of the FCC;
provided that the Borrower shall and shall cause each of the Subsidiary
Guarantors to use its best efforts to carry out the provisions of this Section
9.25 consistent with all laws and all rules, regulations and policies of the
FCC, including, without limitation, pursuing any necessary approval or consents
of the FCC.
9.26 Equity Issuance. The Borrower will not effect an Equity
Issuance; provided that the Borrower may (a) (i) issue the Seller Stock on the
Restatement Effective Date, (ii) issue its Class A Common Stock as contemplated
by the Baker Stock Option Agreement, the Corporate Employee Stock Option
Agreement, the Station Employee Stock Option Agreement and the Designated
Employee Stock Option Plan and (iii) make an Equity Issuance pursuant to the
Columbus Option Agreement; (b) issue the Preferred Stock and the In-Kind
Preferred Stock (and any of its Class A Common Stock upon the conversion of any
Preferred Stock or In-Kind Preferred Stock), provided that the Net Available
Proceeds of the Preferred Stock shall be applied to the prepayment of Revolving
Credit Loans as provided in
Credit Agreement
- 133 -
Section 2.09(b)(ii) hereof; and (c) make any other Equity Issuance so long as,
in the case of this clause (c) only, (i) such Equity Issuance is an Equity
Public Offering, (ii) after giving effect thereto, no Default shall have
occurred and be continuing and (iii) the Net Available Proceeds thereof shall be
applied either (x) to finance the purchase by the Borrower of the Seller Stock
and transaction expenses in connection therewith, (y) to finance the
consummation of any Acquisition (other than the River City Non-License
Acquisition) and transaction expenses in connection with such Acquisition or (z)
any combination of the foregoing clauses (x) and (y), provided that 80% of any
portion of such Net Available Proceeds not so applied shall be applied to the
prepayment of Loans as provided in Section 2.09(b)(i) hereof.
9.27 CRESAP. Notwithstanding anything contained herein to the
contrary, prior to the making of the CRESAP
Investment:
(a) The Borrower shall not permit CRESAP to engage in any
business activity other than employing commercial airplane pilots and
contracting the services of such pilots to other Persons;
(b) subject to the proviso to Section 9.27(e) hereof, the
Borrower shall not, and shall not permit its Subsidiaries to, transfer
cash or other Property to CRESAP after the Restatement Effective Date,
howsoever such transfer may be characterized or effected; provided that
the Borrower and its Subsidiaries may pay to CRESAP, in cash, fees not
exceeding $695,500 in any calendar year;
(c) neither the Borrower nor any of its Subsidiaries shall
become obligated to CRESAP in any manner whatsoever except with respect
to the payment of fees permitted by the preceding paragraph (b);
(d) the Borrower shall not permit CRESAP to incur Indebtedness
in an aggregate principal amount exceeding $1,500,000 at any one time
outstanding; and
(e) without limiting the effect of clause (b) of this Section
9.27, neither the Borrower nor any of its Subsidiaries shall make, hold
or maintain any Investment (including, without limitation, any
Investment made before the Restatement Effective Date) in CRESAP other
than the capital stock of CRESAP held by the Borrower on the
Restatement Effective Date; provided that the Borrower or any one of
its Subsidiaries may make a single Investment in CRESAP not exceeding
$1,000,000, the proceeds of which shall be used by CRESAP immediately
upon receipt thereof to repay
Credit Agreement
- 134 -
in full all Indebtedness of CRESAP outstanding on the date of the such
Investment.
9.28 Real Property.
(a) Not later than 90 days after the Restatement Effective
Date, each Credit Party shall take the following actions with respect to its
interests in real property (including real property acquired as part of the
River City Non-License Acquisition) specified by the Agent or the Majority
Lenders, acquired after May 24, 1994 and with respect to which such actions have
not heretofore been taken by such Credit Party:
(i) cause such interests to be mortgaged to the Agent as
security for its obligations under the Basic Documents pursuant to a
mortgage, deed of trust or similar instrument in form and substance
satisfactory to the Agent in its reasonable judgment;
(ii) in the case of leases under which such Credit Party is
lessee, cause the respective landlords to execute such estoppel
agreements, cause such leases to be recorded in the appropriate county
land offices and take such other action as the Agent may reasonably
request to ensure that such leases are "mortgageable", as determined by
the Agent in its reasonable judgment;
(iii) cause to be issued by Chicago Title Insurance Company
(the "Title Company") and delivered to the Agent mortgagee policies of
title insurance satisfactory to the Agent in form and substance
insuring the validity and first- priority of the Liens created under
each of the Mortgages for and in amounts satisfactory to the Agent
subject only to such exceptions as are satisfactory to the Agent and
containing such affirmative coverage and endorsements as the Lenders
may require;
(iv) cause to be delivered to the Agent, in respect of each of
the facilities covered by the Mortgages, as-built surveys, or such
other evidence demonstrating to the satisfaction of the Agent that the
improvements represented to the Agent as being located on such facility
are in fact located thereon; and
(v) cause to be executed and delivered to the Agent such other
documentation as the Agent may reasonably request in connection
therewith, including, without limitation, Uniform Commercial Code
financing statements, certified corporate resolutions and other
corporate documents of the mortgagor and favorable opinions of counsel
to the mortgagor
Credit Agreement
- 135 -
(which shall cover, among other things, the legality, validity, binding
effect and enforceability of such mortgage, subject to customary
exceptions satisfactory to the Agent in its reasonable judgment).
(b) Not later than 90 days after the Restatement Effective
Date, each Credit Party shall take the following actions with respect to its
interests in real property specified by the Agent or the Majority Lenders held
by it prior to the River City Non-License Acquisition and subject to a Mortgage:
(i) execute and deliver a Mortgage Amendment amending each
Mortgage covering such interests;
(ii) in the case of leases under which such Credit Party is
lessee, cause the respective landlords to execute such estoppel
agreements, cause such leases to be recorded in the appropriate county
land offices and take such other action as the Agent may reasonably
request to ensure that such leases are "mortgageable", as determined by
the Agent in its reasonable judgment;
(iii) cause to be issued by the Title Company and delivered to
the Agent endorsements to the existing title insurance policies issued
by the Title Company pursuant to the Existing Credit Agreement which
endorsements shall be satisfactory to the Agent in form and substance
insuring the validity and priority of the Liens created under each of
the Mortgages (as amended by the Mortgage Amendments) for and in
amounts satisfactory to the Agent, subject only to such exceptions as
are satisfactory to the Agent and containing such affirmative coverage
and endorsements as the Lenders may require;
(iv) cause to be delivered to the Agent, in respect of each of
the facilities covered by the Mortgages, as-built surveys, or such
other evidence demonstrating to the satisfaction of the Agent that the
improvements represented to the Agent as being located on such facility
are in fact located thereon; and
(v) cause to be executed and delivered to the Agent such other
documentation as the Agent may reasonably request in connection
therewith, including, without limitation, Uniform Commercial Code
financing statements, certified corporate resolutions and other
corporate documents of the mortgagor and favorable opinions of counsel
to the mortgagor (which shall cover, among other things, the legality,
validity, binding effect and enforceability of such Mortgage
Credit Agreement
- 136 -
Amendment, subject to customary exceptions satisfactory to the Agent in
its reasonable judgment).
(c) The Borrower shall (i) notify the Agent with respect to
any interest acquired by any Credit Party in any real estate after the date
hereof not less than three Business Days after such acquisition and (ii) not
later than 60 days after any request by the Majority Lenders:
(v) cause such interest to be mortgaged to the Agent by the
owner thereof (as security for their respective obligations under the
Basic Documents) pursuant to a mortgage, deed of trust or similar
instrument in form and substance satisfactory to the Agent in its
reasonable judgment;
(w) in the case of leases under which such owner is lessee,
cause the respective landlords to execute such estoppel agreements,
cause such leases to be recorded in the appropriate county land offices
and take such other action as the Agent may reasonably request to
ensure that such leases are "mortgageable", as determined by the Agent
in its reasonable judgment;
(x) cause to be issued by the Title Company and delivered to
the Agent mortgagee policies of title insurance satisfactory to the
Agent in form and substance insuring the validity and first-priority of
the Liens created under each of the Mortgages for and in amounts
satisfactory to the Agent subject only to such exceptions as are
satisfactory to the Agent and containing such affirmative coverage and
endorsements as the Lenders may require;
(y) cause to be delivered to the Agent, in respect of each of
the facilities covered by the Mortgages on the interests in real estate
so acquired, as-built surveys, or such other evidence demonstrating to
the satisfaction of the Agent that the improvements represented to the
Agent as being located on such facility are in fact located thereon;
and
(z) cause to be executed and delivered to the Agent such other
documentation as the Agent may reasonably request in connection
therewith, including, without limitation, Uniform Commercial Code
financing statements, environmental assessments, title insurance,
certified corporate resolutions and other corporate documents of the
mortgagor and favorable opinions of counsel to the mortgagor (which
shall cover, among other things, the legality, validity, binding effect
and enforceability of such mortgage, subject
Credit Agreement
- 137 -
to customary exceptions) reasonably satisfactory to the Agent.
(d) In connection with the foregoing clauses (a), (b) and (c)
of this Section 9.28, the Borrower shall pay to the Title Company all expenses
and premiums in connection with the issuance of the title insurance and in
addition shall pay to the Title Company an amount equal to the recording and
stamp taxes payable in connection with recording each Mortgage and Mortgage
Amendment in the appropriate county land office.
9.29 Program Services Agreements. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any local marketing
agreement, time brokerage agreement, program services agreement or any similar
agreement providing for:
(a) the Borrower or any of its Subsidiaries to program or sell
advertising time on all or any portion of the broadcast time of any
television or radio station; or
(b) any Person other than the Borrower or any of its
Subsidiaries to program or sell advertising time on all or any portion
of the broadcast time of any Station except for KBLA(AM), a radio
broadcasting station licensed to Santa Monica, California and serving
the Santa Monica area.
Notwithstanding the preceding sentence, the Borrower or any of its Subsidiaries
(other than License Subsidiaries) may enter into any Program Services Agreement
with any other Person (including, without limitation, Affiliates) provided that
the aggregate amount payable by the Borrower and its Subsidiaries under all
Program Services Agreements during any fiscal year of the Borrower (beginning
with its fiscal year ending in 1996), excluding Permitted Termination Payments
(as defined in the next sentence), shall not exceed the Maximum Amount (as
defined in the next sentence) for such fiscal year. For purposes of the
preceding sentence, (i) a "Permitted Termination Payment" shall mean a payment
owing by the Borrower or any of its Subsidiaries by reason of the early
termination of a Program Services Agreement relating to any of the television
stations referred to below provided that the amount of such payment shall not
exceed the amount set forth below opposite the name of such television station:
Station Termination Payment
------- -------------------
WVTV-TV $3,000,000
WNUV-TV $3,000,000
WRDC-TV $4,000,000
WABM-TV $5,000,000
Credit Agreement
- 138 -
WTTE-TV $2,500,000
WFBC-TV $2,500,000
KRRT-TV $2,500,000; and
(ii) the "Maximum Amount" for any fiscal year of the Borrower shall mean (x) for
its fiscal year ending in 1996, $25,000,000 and (y) for any of its fiscal years
thereafter, an amount equal to the Maximum Amount for its preceding fiscal year
increased (or decreased, as the case may be) by the percentage of the increase
(or decrease, as the case may be) in the Consumer Price Index for all Urban
Consumers (as published by the U.S. Department of Labor) for the twelve-month
period ending in September of such preceding fiscal year. As used in this
Section 9.29, (w) "WABM- TV" shall mean WABM-TV, Channel 68, a television
broadcasting station licensed to Birmingham, Alabama and serving the Birmingham
area, (x) "WNUV-TV" shall mean WNUV-TV, a television broadcasting station
licensed to Baltimore, Maryland and serving the Baltimore area, (y) "WRDC-TV"
shall mean WRDC-TV, Channel 28, a television broadcasting station licensed to
Raleigh-Durham, North Carolina and serving the Raleigh-Durham area, and (z)
"WVTV-TV" shall mean WVTV-TV, a broadcasting television station licensed to
Milwaukee, Wisconsin and serving the Milwaukee area.
9.30 FCC Filings. Not later than 30 days after the Restatement
Effective Date, the Borrower will cause to be filed with the FCC in connection
with the proposed transfer to the Borrower or any of its Subsidiaries of the
"License Assets" referred to in the River City Group I Option Agreement and the
"Columbus Station Assets" referred to in the Columbus Option Agreement,
applications for all material authorizations, licenses and permits issued by the
FCC that are required or necessary for the conduct of business of the Borrower
and its Subsidiaries as proposed to be conducted with respect to each of the
Stations to which such "License Assets" relate or the "Columbus Station Assets"
relate, as the case may be.
9.31 Exercise of River City Options. Not later than 90 days
after the issuance by the FCC of an order approving the assignment or transfer
of control to the Borrower or any of its Subsidiaries of Broadcast Licenses for
any "Station" referred to in the River City Group I Option Agreement or the
"Columbus Station" referred to in the Columbus Option Agreement (whether or not
such order is subject to reconsideration or review by the FCC or by any court or
administrative body), the Borrower shall consummate the applicable River City
License Acquisition in accordance with Section 9.05(d)(i) hereof.
9.32 Limitation on Cure Rights. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into
Credit Agreement
- 139 -
any agreement (a "Cure Right Agreement") with or for the benefit of any other
Person that limits the ability of the Borrower or such Subsidiary to exercise
any rights or remedies under any agreement (an "Acquisition Agreement") pursuant
to which an Acquisition is to be consummated; provided that the Borrower or any
of its Subsidiaries may enter into or suffer to exist any Cure Right Agreement
for the benefit of the lenders to Glencairn or to River City, as the case may
be, to the extent that such lenders (or an agent on behalf of such lenders) has
a security interest in the Acquisition Agreement to which such Cure Right
Agreement relates.
Section 10. Events of Default.
10.01 Events of Default; Remedies. If one or more of the
following events (herein called "Events of Default") shall occur and be
continuing:
(a) Any Obligor shall default in the payment when due (whether
at stated maturity or upon mandatory or optional prepayment) of any
principal of or interest on any Loan, or any Reimbursement Obligation,
any fee or any other amount payable by it hereunder or under any other
Basic Document; or
(b) Any of the Obligors shall default in the payment when due
of any principal of or interest on any of its other Indebtedness
aggregating $5,000,000 or more, or in the payment when due of any
amount under any Interest Rate Protection Agreement for a notional
principal amount exceeding $5,000,000; or any event specified in any
note, agreement, indenture or other document evidencing or relating to
any such Indebtedness or any event specified in any Interest Rate
Protection Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity
or to have the interest rate thereon reset to a level so that
securities evidencing such Indebtedness trade at level specified in
relation to the par value thereof or, in the case of an Interest Rate
Protection Agreement, to permit the payments owing under such Interest
Rate Protection Agreement to be liquidated; or
Credit Agreement
- 140 -
(c) Any representation, warranty or certification made or
deemed made in any Basic Document (or in any modification or supplement
thereto) by any of the Credit Parties or any certificate furnished to
any Lender or the Agent pursuant to the provisions thereof, shall prove
to have been false or misleading as of the time made or furnished in
any material respect; or
(d) Any of the Credit Parties shall default in the performance
of any of its obligations under (i) any of Sections 9.01(h), 9.05
through 9.20, 9.25, 9.29, 9.30, or 9.31 hereof, (ii) either of Section
4.02 or 5.02 of the Security Agreement, (iii) either of Section 5.02
and 7.02 of the Affiliate Guarantee and Security Agreement or (iv) any
provision of any of the Mortgages; or any of the Credit Parties shall
default in the performance of any of its other obligations in this
Agreement or any other Basic Document and such default shall continue
unremedied for a period of ten days after notice thereof to the
Borrower by the Agent or any Lender (through the Agent); or
(e) Any of the Obligors or Material Third-Party Licensees
shall admit in writing its inability to, or be generally unable to, pay
its debts as such debts become due; or
(f) Any of the Obligors or Material Third-Party Licensees,
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its Property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code, or
(vi) take any corporate action for the purpose of effecting any of the
foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of any of the Obligors or Material Third-Party
Licensees in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, examiner, liquidator or the like of such
Obligor, River City or such Subsidiary, as the
Credit Agreement
- 141 -
case may be, or of all or any substantial part of its Property, or
(iii) similar relief in respect of such Obligor under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against such
Obligor, River City or such Subsidiary, as the case may be, shall be
entered in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in
excess of $5,000,000 in the aggregate shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against any of the Obligors and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of entry
thereof and the relevant Obligor shall not, within said period of 30
days, or such longer period during which execution of the same shall
have been stayed, appeal therefrom and cause the execution thereof to
be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(f) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, the Borrower or any ERISA Affiliate shall
incur or in the opinion of the Majority Lenders shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or PBGC (or
any combination of the foregoing) which would constitute, in the
determination of the Majority Lenders, a Material Adverse Effect; or
(j) During any period of 25 consecutive calendar months,
individuals who were directors of the Borrower on the first day of such
period shall no longer constitute a majority of the board of directors
of the Borrower; or
(k) Except for expiration in accordance with its terms, any of
the Security Documents shall be terminated or shall cease to be in full
force and effect, for whatever reason; or
(l) Any Broadcast License (other than an Immaterial Broadcast
License) shall be terminated, forfeited or revoked or shall fail to be
renewed for any reason whatsoever, or shall be modified in a manner
materially adverse to the
Credit Agreement
- 142 -
Borrower, or for any other reason (i) any License Subsidiary shall at
any time cease to be a licensee under any Broadcast License (other than
an Immaterial Broadcast License) relating to the Owned Station to which
such Broadcast Licenses have been granted or the Subsidiary of the
Borrower that owns 100% of the capital stock of such License Subsidiary
shall otherwise fail to have all required authorizations, licenses and
permits to construct, own, operate or promote such Owned Station, or
(ii) any Material Third-Party Licensee for any Contract Station shall
fail to preserve and maintain its legal existence or any of its
material rights, privileges or franchises (including the Broadcast
Licenses (other than an Immaterial Broadcast Licenses) for such
Contract Station (other than by reason of such Contract Station
becoming an Owned Station)); or
(m) With respect to any Owned Station, the License Subsidiary
with respect to such Owned Station shall at any time cease to be a
Wholly Owned Subsidiary of the Subsidiary of the Borrower that owns the
operating assets related to the Broadcast Licenses for such Owned
Station; or the Borrower shall cease at any time to own all of the
issued shares of the Capital Stock of any such Subsidiary; or
(n) Any transfer of any common stock of the Borrower or any of
its Subsidiaries or any right to receive such common stock or any other
interest in the Borrower or any of its Subsidiaries shall be
transferred and either (i) such transfer shall fail to comply with any
applicable provision of the Federal Communications Act of 1934, as
amended from time to time, or any applicable FCC rule, regulation or
policy, or (ii) the Agent shall not have received prior to such
transfer any opinion reasonably satisfactory to the Majority Lenders of
counsel reasonably satisfactory to the Majority Lenders to the effect
that such transfer does so comply; or
(o) the Smith Brothers shall cease at any time collectively to
own, legally or beneficially, shares of stock of the Borrower
representing at least 51% of the voting power and economic value of the
Borrower (other than, in any case referred to in this paragraph (o), by
reason of death or disability); or
(p) the Borrower shall deliver any Change of Control Purchase
Notice under and as defined in any Senior Subordinated Note Indenture;
or
(q) any Program Services Agreement shall be terminated prior
to its stated expiration date and the Obligor party
Credit Agreement
- 143 -
thereto shall not have entered into a substantially identical agreement
relating to the Contract Station to which such Program Services
Agreement relates or any party to any Program Services Agreement shall
default in any of its obligations thereunder; or
(r) any party to any of the River City Acquisition Documents
shall default in the performance of any of its obligations thereunder;
or
(s) any party to a Consent and Agreement shall default in the
performance of any of its obligations thereunder; or
(t) there shall have been asserted against any Credit Party an
Environmental Claim that, in the judgment of the Majority Lenders, is
reasonably likely to be determined adversely to the affected Credit
Parties, and the amount thereof is, singly or in the aggregate,
reasonably likely to have a Material Adverse Effect (insofar as such
amount is payable by any of the Credit Parties by after deducting any
portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable thereof;
THEREUPON: (i) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10.01 with respect to any Obligor, the Agent
may, by notice to the Borrower, terminate the Commitments and/or declare the
principal amount then outstanding of, and the accrued interest on, the Loans,
the Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.06 hereof) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable (provided that (x)
if so requested by the Majority Revolving Credit Lenders, the Majority Tranche A
Lenders, the Majority Tranche B Lenders and the Majority Tranche C Lenders, the
Agent shall take such action with respect to the Commitment and/or Loans of any
Class and other amounts in respect thereof (including, in the case of the
Revolving Credit Commitments and/or the Revolving Credit Loans, the
Reimbursement Obligations) to the extent owed to the relevant Lenders) without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor; and (ii) in the case of the occurrence
of an Event of Default referred to in clause (f) or (g) of this Section 10.01
with respect to any Obligor, the Commitments shall automatically be terminated
and the principal amount then outstanding of, and the accrued interest on, the
Loans, the Reimbursement Obligations and all other amounts payable by the
Obligors hereunder and under the Notes (including, without
Credit Agreement
- 144 -
limitation, any amounts payable under Section 5.05 or 5.06 hereof) shall
automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor.
Without limiting the rights of the Lenders under the preceding paragraph of this
Section 10.01, upon the occurrence and during the continuance of any Event of
Default, the Borrower agrees that it shall, if requested by the Agent or the
Majority Revolving Credit Lenders through the Agent (and, in the case of any
Event of Default referred to in clause (f) or (g) of this Section 10.01 with
respect to the Borrower, forthwith, without any demand or the taking of any
other action by the Agent or such Majority Revolving Credit Lenders) provide
cover for the Letter of Credit Liabilities by paying to the Agent immediately
available funds in an amount equal to the then aggregate undrawn face amount of
all Letters of Credit, which funds shall be held by the Agent in the Collateral
Account as collateral security for the Letter of Credit Liabilities and be
subject to withdrawal only as therein provided.
10.02 Collateral Account.
(a) The Borrower hereby establishes with the Agent a separate
cash collateral account (the "Collateral Account") in the name and under the
control of the Agent into which there shall be deposited from time to time such
amounts as required to be paid to the Agent under Section 2.09, 3.01 or 10.01
hereof.
(b) As collateral security for the prompt payment in full when
due (whether at stated maturity, upon mandatory or optional prepayment, pursuant
to requirements for cash collateral or otherwise) of the Reimbursement
Obligations, interest thereon, and all obligations of the Borrower under the
Letter of Credit Documents relating to Letters of Credit and under Section
2.10(g) hereof (whether or not then outstanding or due and payable) (such
obligations being herein collectively called the "Secured Letter of Credit
Obligations"), the Borrower hereby pledges and grants to the Agent, for the
benefit of the Issuing Bank, the Revolving Credit Lenders and the Agent as
provided herein, a security interest in all of its right, title and interest in
and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall not
constitute payment of any Secured Letter of Credit Obligations until applied by
the Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in Section 2.09(f) hereof and in this Section 10.02.
Credit Agreement
- 145 -
(c) Amounts on deposit in the Collateral Account shall be
invested and reinvested by the Agent in such Permitted Investments as the
Borrower shall determine in its sole discretion, provided that (i) failing
receipt by the Agent of instructions from the Borrower, the Agent may invest and
reinvest such amounts as the Agent shall determine in its sole discretion and
(ii) the approval of the Agent shall be required for the investments and
reinvestments to be made during any period while a Default has occurred and is
continuing. All such investments and reinvestments shall be held in the name and
be under the control of the Agent.
(d) If an Event of Default shall have occurred and be
continuing, the Agent may (and, if instructed by the Majority Revolving Credit
Lenders, shall) in its (or their) discretion at any time and from time to time
elect to liquidate any such investments and reinvestments and credit the
proceeds thereof to the Collateral Account and apply or cause to be applied such
proceeds and any other balances in the Collateral Account to the payment of any
of the Secured Letter of Credit Obligations due and payable.
(e) If (i) no Default has occurred and is continuing and (ii)
all of the Secured Letter of Credit Obligations have been paid in full, the
Agent shall, from time to time, at the request of the Borrower, deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, such of the balances in the Collateral Account as exceed the
aggregate undrawn face amount of the Letters of Credit. When all of the Secured
Letter of Credit Obligations shall have been paid in full and all Letters of
Credit have expired or been terminated, the Agent shall promptly deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, the balances remaining in the Collateral Account.
(f) The Borrower shall pay to the Agent from time to time such
fees as the Agent normally charges for similar services in connection with the
Agent's administration of the Collateral Account and investments and
reinvestments of funds therein.
Section 11. The Agent.
11.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Basic Documents with such powers as are specifically delegated
to the Agent by the terms of this Agreement and of the other Basic Documents,
together with such other powers as are reasonably incidental thereto. The
Credit Agreement
- 146 -
Agent (which term as used in this sentence and in Section 11.05 and the first
sentence of Section 11.06 hereof shall include reference to its affiliates and
its own and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Basic Documents,
and shall not by reason of this Agreement or any other Basic Document
be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Basic Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Basic Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Basic Document or any other document referred to
or provided for herein or therein or for any failure by the Borrower or
any other Person to perform any of its obligations hereunder or
thereunder;
(c) shall not, except to the extent expressly instructed by
the Majority Lenders with respect to collateral security under the
Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Basic Document;
and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Basic Document or under
any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. In that connection, the administrative functions
to be performed by the Agent under this Agreement may be performed by Chemical
Bank. The Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until a notice of the assignment or transfer
thereof shall have been filed with the Agent, together with the consent of the
Borrower to such assignment or transfer.
11.02 Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telegram or cable) believed
Credit Agreement
- 147 -
by it to be genuine and correct and to have been signed or sent by or on behalf
of the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the Agent. As to
any matters not expressly provided for by this Agreement or any other Basic
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders or, if provided herein, in accordance with the
instructions given by all of the Lenders as is required in such circumstance,
and such instructions of such Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
11.03 Defaults. The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default (other than the non-payment
of principal of or interest on Loans or of commitment fees) unless the Agent has
received notice from a Lender or the Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event that the Agent
receives such a notice of the occurrence of a Default, the Agent shall give
prompt notice thereof to the Lenders (and shall give each Lender prompt notice
of each such non-payment). The Agent shall (subject to Section 11.07 hereof)
take such action with respect to such Default as shall be directed by the
Majority Lenders or, if provided herein, the Majority Revolving Credit Lenders,
the Majority Tranche A Lenders, the Majority Tranche B Lenders or the Majority
Tranche C Lenders, provided that, unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable in the best interest of the Lenders except to the extent that
this Agreement expressly requires that such action be taken, or not be taken,
only with the consent or upon the authorization of the Majority Lenders, the
Majority Revolving Credit Lenders, the Majority Tranche A Lenders, the Majority
Tranche B Lenders, the Majority Tranche C Lenders, all of the Lenders with
respect to any Class of Loans or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitment(s)
and the Loans made by it, Chase (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same, and its rights as Issuing Bank
hereunder, as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Chase (and any successor acting as Agent) and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other
Credit Agreement
- 148 -
business with the Obligors (and any of their Subsidiaries or Affiliates) as if
it were not acting as the Agent, and Chase (and any such successor) and its
affiliates may accept fees and other consideration from the Obligors for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed under Section 12.03 hereof, but without
limiting the obligations of the Borrower under said Section 12.03, and including
in any event any payments under any indemnity which the Agent is required to
issue to any bank referred to in Section 4.02 of the Security Agreement and
Section 5.02 of the Affiliate Guarantee and Security Agreement to which
remittances in respect of Accounts, as defined therein, are to be made), ratably
in accordance with their respective Credit Exposures, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent (including by any Lender)
arising out of or by reason of any investigation or in any way relating to or
arising out of this Agreement or any other Basic Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby (including, without limitation, the costs and expenses which
the Borrower is obligated to pay under Section 12.03 hereof, and including also
any payments under any indemnity which the Agent is required to issue to any
bank referred to in Section 4.02 of the Security Agreement and Section 5.02 of
the Affiliate Guarantee and Security Agreement to which remittances in respect
of Accounts, as defined therein, are to be made, but excluding, unless a Default
has occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to be indemnified.
11.06 Non-Reliance on Agent and Other Lenders. Each Lender
agrees that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or any of the other Basic Documents. The Agent shall not be required to keep
Credit Agreement
- 149 -
itself informed as to the performance or observance by any Obligor of this
Agreement or any of the other Basic Documents or any other document referred to
or provided for herein or therein or to inspect the Properties or books of the
Borrower or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder or under the Security Documents, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates) which may come
into the possession of the Agent or any of its affiliates.
11.07 Failure to Act. Except for action expressly required of
the Agent hereunder and under the other Basic Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction from the Lenders
of their indemnification obligations under Section 11.05 hereof against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
11.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower, and
the Agent may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a bank which
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
11.09 Consents under Certain Documents. Except as otherwise
provided in Section 12.04 hereof with respect to this
Credit Agreement
- 150 -
Agreement, the Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Basic Documents or under either Senior Subordinated Note Indenture, provided
that, without the prior consent of each Lender, the Agent shall not (except as
provided herein or in the Security Documents) release any guarantor from its
liability in respect of its guarantee, release any collateral or otherwise
terminate any Lien under any Basic Document providing for collateral security,
or agree to additional obligations being secured by such collateral security
(unless the Lien for such additional obligations shall be junior to the Lien in
favor of the other obligations secured by such Basic Document), except that no
such consent shall be required, and the Agent is hereby authorized, to release
any Lien covering Property which is the subject of a disposition of Property
permitted hereunder or to which the Majority Lenders have consented.
11.10 Collateral Sub-Agents. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Security Agreement, that, in the event it shall hold any Permitted Investments
referred to therein, such Permitted Investments shall be held in the name and
under the control of such Lender, and such Lender shall hold such Permitted
Investments as a collateral sub-agent for the Agent thereunder. The Borrower by
its execution and delivery of this Agreement hereby consents to the foregoing.
11.11 Managing Agents. Neither Bankers Trust Company, First
Union National Bank of North Carolina nor NationsBank, N.A. shall have any
rights (except to the extent expressly provided herein) or obligations hereunder
in their capacities as managing agents.
11.12 Conditions Precedent. To the extent that any document
referred to in Section 7.01 hereof is required by such Section to be
satisfactory to the Agent, any Lender or the Majority Lenders, in no case shall
the Agent be liable for accepting any such document as being satisfactory unless
such acceptance constituted gross negligence or willful misconduct, and the
objecting Lender attended the closing of the amendment and restatement of the
Existing Credit Agreement on the Restatement Effective Date and objected to the
acceptability of such document by notice received by an account officer of Chase
at such closing.
Credit Agreement
- 151 -
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Agent or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Each Obligor irrevocably waives, to the fullest extent
permitted by applicable law, any claim that any action or proceeding commenced
by the Agent or any Lender relating in any way to this Agreement should be
dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by any Obligor relating in any way to this Agreement
whether or not commenced earlier. To the fullest extent permitted by applicable
law, the Obligors shall take all measures necessary for any such action or
proceeding commenced by the Agent or any Lender to proceed to judgment prior to
the entry of judgment in any such action or proceeding commenced by any Obligor.
12.02 Notices. All notices and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof (or below the name of the Borrower, in the case of any
Subsidiary Guarantor); or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
12.03 Expenses, Etc. The Borrower agrees to pay or reimburse
each of the Lenders and the Agent for paying: (a) all reasonable out-of-pocket
costs and expenses of the Agent (including, without limitation, the reasonable
fees and expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel
to Chase, and Wiley, Rein & Fielding, special FCC counsel to Chase), in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the other Basic Documents and the making of the Loans hereunder,
(ii) the negotiation or preparation of any amendment, modification or waiver of
any of the terms of this Agreement or any of the other Basic Documents
Credit Agreement
- 152 -
(whether or not consummated), (iii) the consummation of any Acquisition, (iv)
compliance by the Borrower with any of Sections 9.23, 9.25 and 9.28 hereof; (b)
all reasonable costs and expenses of the Lenders and the Agent (including
reasonable counsels' fees and expenses) in connection with (i) any Default and
any enforcement or collection proceedings resulting therefrom, including,
without limitation, all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 12.03; (c) all transfer, stamp, documentary,
mortgage, mortgage recording, intangible or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Basic Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by this Agreement or any other Basic Document
or any other document referred to herein or therein; and (d) all costs, expenses
and other charges in respect of title insurance procured with respect to the
Liens created pursuant to the Mortgages.
The Borrower hereby agrees to indemnify the Agent and each
Lender and their respective directors, officers, employees and agents for, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them (including any and all losses,
liabilities, claims, damages or expenses incurred by the Agent to any Lender,
whether or not the Agent or any Lender is a party thereto) arising out of or by
reason of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Borrower or
any of its Subsidiaries of the proceeds of any of the extensions of credit
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified). Without limiting the generality of the foregoing,
the Borrower will indemnify the Agent for any payments which the Agent is
required to make under any indemnity issued to any bank referred to in Section
4.02 of the Security Agreement to which remittances in respect to Accounts, as
defined therein, are to be made and indemnify the Agent and each Lender from,
and hold the Agent and each Lender harmless against, any losses, liabilities,
claims, damages or
Credit Agreement
- 153 -
expenses described in the preceding sentence (including any Lien filed against
any Property covered by the Mortgage(s) in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising as a result of any
representation, warranty or certification made or deemed to be made in Section
8.13 hereof and proved to have been false or misleading as of the time made or
arising under any Environmental Law as a result of the past, present or future
operations of the Borrower or any of its Subsidiaries (or any predecessor in
interest to the Borrower or any of its Subsidiaries), or the past, present or
future condition of any site or facility owned, operated or leased at any time
by the Borrower or any of its Subsidiaries (or any such predecessor in
interest), or any Release or threatened Release of any Hazardous Materials at or
from any such site or facility, including any such Release or threatened Release
that shall occur during any period when the Agent or any Lender shall be in
possession of any such site or facility following the exercise by the Agent or
any Lender of any of its rights and remedies hereunder or under any of the
Security Documents.
12.04 Amendments, Etc. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be amended or modified
only by an instrument in writing signed by the Borrower, the Agent and the
Majority Lenders, or by the Borrower and the Agent acting with the consent of
the Majority Lenders, and any provision of this Agreement may be waived only by
an instrument in writing signed by the Majority Lenders or by the Agent acting
with the consent of the Majority Lenders; provided that:
(a) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Lenders or by the Agent acting with the
consent of all of the Lenders:
(i) increase or extend the term, or extend the time
or waive any requirement for the reduction or termination, of
any of the Commitments;
(ii) extend the date fixed for the payment of
principal of or interest on any Loan, any Reimbursement
Obligation or any fee hereunder;
(iii) reduce the amount of any such payment of
principal;
(iv) reduce the rate at which interest is payable
thereon or any fee is payable hereunder;
Credit Agreement
- 154 -
(v) alter the rights or obligations of the Borrower
to prepay Loans;
(vi) alter the terms of Section 11.09 hereof or of
this Section 12.04;
(vii) amend the definition of the term "Majority
Lenders", "Majority Revolving Credit Lenders", "Majority
Tranche A Lenders", "Majority Tranche B Lenders" or "Majority
Tranche C Lenders" or modify in any other manner the number or
percentage of the Lenders (or Class of Lenders) required to
make any determinations or waive any rights hereunder or to
modify any provision hereof;
(viii) alter the manner in which payments or
prepayments of principal, interest or other amounts hereunder
shall be applied as between the Lenders or Types or Classes of
Loans; or
(ix) waive any of the conditions precedent set forth
in Section 7.01 hereof;
(b) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Revolving Credit Lenders or by the
Agent acting with the consent of all of the Revolving Credit Lenders
waive any condition precedent set forth in Section 7.02 hereof to the
making of any Revolving Credit Loan or the issuance of any Letter of
Credit;
(c) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Tranche A Lenders or by the Agent
acting with the consent of all of the Tranche A Lenders waive any
condition precedent set forth in Section 7.02 hereof to the making of
any Tranche A Term Loan;
(d) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Tranche B Lenders or by the Agent
acting with the consent of all of the Tranche B Lenders waive any
condition precedent set forth in Section 7.02 hereof to the making of
any Tranche B Term Loan;
(e) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Tranche C Lenders or by the Agent
acting with the consent of all of the Tranche C Lenders waive any
condition precedent set forth in Section 7.02 hereof to the making of
any Tranche C Term Loan;
Credit Agreement
- 155 -
(f) any amendment modifying Section 11 hereof, or which
affects the rights or obligations of the Agent hereunder, shall require
the consent of the Agent;
(g) any modification or supplement to this Agreement that
affects the rights, remedies or obligations of the Issuing Bank in its
capacity as issuer of the Letter of Credit shall require the consent of
the Issuing Bank; and
(h) any modification or supplement of Section 6 hereof shall
require the consent of each Subsidiary Guarantor and, if such
modification or supplement expressly releases any Subsidiary Guarantor
from its liability thereunder, the consent of each Lender.
In furtherance of clauses (b), (c), (d) and (e) of this
Section 12.04, no amendment to or waiver of any representation or warranty or
any covenant contained in this Agreement or any other Basic Document, or of any
Event of Default, shall be deemed to be effective for purposes of determining
whether the conditions precedent set forth in Section 7.02 hereof to the making
of any Loan of any Class have been satisfied unless the Majority Revolving
Credit Lenders, the Majority Tranche A Lenders, the Majority Tranche B Lenders
or the Majority Tranche C Lenders (as the case may be) shall have consented to
such amendment or waiver.
Anything in this Agreement to the contrary notwithstanding,
if:
(x) at a time when the conditions precedent set forth in
Section 7 hereof to a Loan of any Class hereunder are, in the opinion
of the Majority Revolving Credit Lenders, the Majority Tranche A
Lenders, the Majority Tranche B Lenders or the Majority Tranche C
Lenders (as the case may be), satisfied, any Lender shall fail to
fulfill its obligations to make such Loan; or
(y) any Revolving Credit Lender shall fail to pay to the Agent
for the account of the Issuing Bank the amount of such Revolving Credit
Lender's Revolving Credit Commitment Percentage of any payment under a
Letter of Credit pursuant to Section 2.10(e) hereof;
then, for so long as such failure shall continue, such Lender shall (unless the
Majority Lenders, the Majority Revolving Credit Lenders, the Majority Tranche A
Lenders, the Majority Tranche B Lenders or the Majority Tranche C Lenders (as
the case may be), determined as if such Lender were not a "Lender" hereunder,
shall otherwise consent in writing) be deemed for all purposes relating
Credit Agreement
- 156 -
to amendments, modifications, waivers or consents under this Agreement or any of
the other Basic Documents (including, without limitation, under this Section
12.04 and under Section 11.09 hereof) to have no Loans, Letter of Credit
Liabilities or Commitments, shall not be treated as a "Lender" hereunder when
performing the computation of the Majority Lenders, the Majority Revolving
Credit Lenders, the Majority Tranche A Lenders, the Majority Tranche B Lenders
or the Majority Tranche C Lenders (as the case may be), and shall have no rights
under the preceding paragraph of this Section 12.04; provided that any action
taken by the other Lenders with respect to the matters referred to in clause (a)
of the preceding paragraph shall not be effective as against such Lender.
12.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign its rights or obligations hereunder
or under the Notes without the prior consent of all of the Lenders and the
Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Letter of Credit Interest and its Commitments without the consent of the
Borrower or the Agent; provided that:
(i) any such partial assignment shall be in an amount at least
equal to $5,000,000 (which, in the case of simultaneous assignments by
any of Chase and the Managing Agents, shall be the minimum amount of
the sum of such assignments);
(ii) each such assignment by a Revolving Credit Lender of its
Revolving Credit Loans, Revolving Credit Note, Revolving Credit
Commitment or Letter of Credit Interest shall be made in such manner so
that the same portion of its Revolving Credit Loans, Revolving Credit
Note, Revolving Credit Commitment and Letter of Credit Interest is
assigned to the respective assignee and shall require the prior consent
of the Issuing Bank;
(iii) each such assignment by a Tranche C Lender of its
Tranche C Term Loans, Tranche C Term Loan Note or Tranche C Term Loan
Commitment shall be made in such manner so that the same portion of its
Tranche C Term Loans, Tranche C Term Loan Note or Tranche C Term Loan
Commitment is assigned to the respective assignee; and
Credit Agreement
- 157 -
(iv) each such assignment shall be effected pursuant to an
Assignment and Acceptance in substantially the form of Exhibit I hereto
and the assignor and assignee shall deliver to the Borrower, the Agent
and (if the assignment is of Revolving Credit Commitments and Letter of
Credit Interest) the Issuing Bank a fully executed copy thereof.
Upon execution and delivery by the assignor and the assignee to the Borrower,
the Agent and (if applicable) the Issuing Bank of such Assignment and Acceptance
and upon consent thereto by the Issuing Bank to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise provided
in such assignment with the consent of the Borrower and the Agent), the
obligations, rights and benefits of a Lender hereunder holding the
Commitment(s), Letter of Credit Interest and Loans (or portions thereof)
assigned to it (in addition to the Commitment(s), Letter of Credit Interest and
Loans, if any, theretofore held by such assignee) and the assigning Lender
shall, to the extent of such assignment, be released from the Commitment(s) (or
portion(s) thereof) so assigned. Upon each such assignment the assigning Lender
shall pay the Agent an assignment fee of $3,000.
(c) A Lender may sell or agree to sell to one or more other
Persons a participation in all or any part of any Loans held by it, or in its
Commitment(s) or Letter of Credit Interests in which event each purchaser of a
participation (a "Participant") shall be entitled to the rights and benefits of
the provisions of Section 9.01(k) hereof with respect to its participation in
such Loans, Commitment(s) and Letter of Credit Interests as if (and the Borrower
shall be directly obligated to such Participant under such provisions as if)
such Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c) hereof, shall not have any other rights or
benefits under this Agreement or any Note or any other Basic Document (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by the Borrower to any Lender under Section 5
hereof in respect of Loans held by it, its Commitment and its Letter of Credit
Interests shall be determined as if such Lender had not sold or agreed to sell
any participations in such Loans, Commitment and Letter of Credit Interests and
as if such Lender were funding each of such Loan, Commitment and Letter of
Credit Interests in the same way that it is funding the portion of such Loan,
Commitment and Letter of Credit Interests in which no participations have been
sold. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under any
other Basic Document except that such Lender may
Credit Agreement
- 158 -
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of such Lender's related
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans, Reimbursements Obligations or any portion
of any fee hereunder payable to the Participant, (iii) reduce the amount of any
such payment of principal, (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below the
rate at which the Participant is entitled to receive such interest or fee, (v)
alter the rights or obligations of the Borrower to prepay the related Loans, or
(vi) consent to any modification, supplement or waiver hereof or of any of the
other Basic Documents to the extent that the same, under Section 11.10 hereof,
requires the consent of each Lender.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
(without notice to the Borrower, the Agent or any other Lender and without
payment of any fee) (i) assign and pledge all or any portion of its Loans and
its Note(s) to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank and
(ii) assign all or any portion of its rights under this Agreement and its Loans
and its Note(s) to an affiliate. No such assignment shall release the assigning
Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants).
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan or
Reimbursement Obligation held by it hereunder to the Borrower or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
(g) At the request of any Lender that is not a U.S. Person and
is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the
Borrower shall maintain, or cause to be maintained, a register (the "Register")
that, at the request of the Borrower, shall be kept by the Agent on behalf of
the Borrower at no charge to the Borrower at the address to which notices to the
Agent are to be sent hereunder, on which it enters the name of such Lender as
the registered owner of each Registered Loan held by such Lender. A Registered
Loan (and the Registered Note, if any, evidencing the same) may be assigned or
Credit Agreement
- 159 -
otherwise transferred in whole or in part only by registration of such
assignment or transfer on the Register (and each Registered Note shall expressly
so provide). Any assignment or transfer of all or part of such Loan (and the
Registered Note, if any, evidencing the same) may be effected by registration of
such assignment or transfer on the Register, together with the surrender of the
Registered Note, if any, evidencing the same duly endorsed by (or accompanied by
a written instrument of assignment or transfer duly executed by) the holder of
such Registered Note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new Registered Notes in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s). Prior to
the registration of assignment or transfer of any Registered Loan (and the
Registered Note, if any, evidencing the same), the Borrower shall treat the
Person in whose name such Loan (and the Registered Note, if any, evidencing the
same) is registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding notice to the
contrary.
(h) The Register shall be available for inspection by the
Borrower and any Lender that is a Registered Holder at any reasonable time upon
reasonable prior notice.
12.07 Survival. The obligations of the Borrower under Sections
2.10(g), 2.10(l), 5.01, 5.05, 5.06, 5.07, 12.03 and 12.13 hereof, the
obligations of each Subsidiary Guarantor under Section 6.03 hereof and the
obligations of the Lenders under Section 11.05 hereof shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit Interest hereunder, shall survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any extension of credit, herein or pursuant
hereto shall survive the making of such representation and warranty, and no
Lender shall be deemed to have waived, by reason of making any extension of
credit hereunder, any Default which may arise by reason of such representation
or warranty proving to have been false or misleading, notwithstanding that such
Lender or the Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the time such
extension of credit was made.
12.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Credit Agreement
- 160 -
12.09 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
12.10 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
12.11 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.12 Treatment of Certain Information. The Borrower
acknowledges that (a) services may be offered or provided to it (in connection
with this Agreement or otherwise) by each Lender or by one or more subsidiaries
or affiliates of such Lender and (b) information delivered to each Lender by the
Borrower and its Subsidiaries may be provided to each such subsidiary and
affiliate.
12.13 Cure of Defaults by Agent or Lenders. Notwithstanding
anything contained herein to the contrary, the Agent or any Lender may in its
sole discretion, but shall not be obligated to, (a) cure any monetary default
under any Program Services Agreement or (b) cure, by monetary payment or by
performance, any default under any lease or option agreement to which the
Borrower or any Subsidiary is a party. In each case referred to in the foregoing
clauses (a) and (b), the Borrower shall reimburse the Agent or such Lender for
any such payment, and shall indemnify the Agent or such Lender for any and all
costs and expenses (including, without limitation, the fees and expenses of
counsel) incurred by the Agent or such Lender in connection with any such
performance, in each case with interest, at the Base Rate plus the Applicable
Margin, payable from the date of such payment or performance by the Agent or
such Lender
Credit Agreement
- 161 -
to the date of reimbursement by the Borrower. Without limiting the generality of
the foregoing, the Agent or any Lender may in its sole discretion, but shall not
be obligated to, cure, by monetary payment or by performance, any default as
permitted by any Consent and Agreement and the Borrower shall reimburse the
Agent or such Lender for any such payment, and shall indemnify the Agent or such
Lender for any and all costs and expenses (including, without limitation, the
fees and expenses of counsel) incurred by the Agent or such Lender in connection
with any such performance, in each case with interest, at the Base Rate plus the
Applicable Margin, payable from the date of such payment or performance by the
Agent or such Lender to the date of reimbursement by the Borrower.
Credit Agreement
- 162 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SINCLAIR BROADCAST GROUP, INC.
By /s/ David B. Amy
---------------------------------
Name: David B. Amy
Title: Chief Financial Officer
Address for Notices:
Sinclair Broadcast Group, Inc.
2000 West 41st Street
Baltimore, MD 21211
Telecopier No.: (410) 467-5043
Telephone No.: (410) 467-5005
Attention: David D. Smith
with a copy to:
Thomas & Libowitz, P.A.
100 Light Street
Baltimore, MD 21202
Telephone No.: (410) 752-2468
Telecopier No.: (410) 752-2046
Attention: Steven Thomas
Credit Agreement
- 163 -
SUBSIDIARY GUARANTORS
CHESAPEAKE TELEVISION, INC.
KABB, INC.
KDNL, INC.
KDSM, INC.
KSMO, INC.
SCI - INDIANA, INC.
SCI - SACRAMENTO, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SUBSIDIARY GUARANTORS WILKES-BARRE, INC.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC
WDBB, INC.
WLFL, INC.
WLOS, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
SUPERIOR COMMUNICATIONS OF
OKLAHOMA, INC.
By /s/ David B.Amy
---------------------------------
Name: David B. Amy
Title: Secretary/Treasurer
Credit Agreement
- 164 -
Credit Agreement
----------------
Credit Agreement
- 165 -
SUBSIDIARY GUARANTORS
---------------------
CHESAPEAKE TELEVISION
LICENSEE, INC
FSF TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KDSM LICENSEE, INC.
KSMO LICENSEE, INC.
SCI - INDIANA LICENSEE, INC.
SCI - SACRAMENTO LICENSEE, INC.
SINCLAIR RADIO OF ALBUQUERQUE
LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO
LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE
LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES
LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS
LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE
LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS
LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS
LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC.
SUPERIOR COMMUNICATIONS GROUP, INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
WCGV LICENSEE, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WSMH LICENSEE, INC.
WTTO LICENSEE, INC.
WYZZ LICENSEE, INC.
By /s/ J. Duncan Smith
-----------------------------------
Credit Agreement
- 166 -
Name: J. Duncan Smith
Title: Secretary
Credit Agreement
----------------
Credit Agreement
- 167 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By /s/ Tracey A. Navin
----------------------------------
Name: Tracey A. Navin
Title: Vice President
Address-for Notices to
Chase as Agent:
The Chase Manhattan Bank
(National Association)
c/o Chemical Bank
Agent Bank Services
140 East 45th Street, 29th Floor
New York, NY 10017
Telecopier No.: (212) 622-0122
Telephone No.: (212) 622-0004
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION)
By /s/ Tracey A. Navin
----------------------------------
Name: Tracey A. Navin
Title: Vice President
Lending Office for All Loans:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, NY 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, NY 10081
Telecopier No.: (212) 552-0259/4905
Credit Agreement
- 168 -
Telephone No.: (212) 552-5953
Attention: Tracey A. Navin
Credit Agreement
----------------
Credit Agreement
- 169 -
LEHMAN COMMERCIAL PAPER INC.
By /s/ Dennis J. Dee
----------------------------------
Name: Dennis J. Dee
Title: Authorized Signatory
Lending office for all Loans:
Lehman Commercial Paper Inc.
c/o Bankers Trust Company
Corporate Trust & Agency Group
4 Albany Street, 10th Floor
New York, NY 10006
Attention: Chris Pohl
with a copy to:
Lehman Commercial Paper Inc.
101 Hudson Street, 30th Floor
Jersey City, NJ 07302
Telecopier No.: (201) 524-5847
Telephone No.: (201) 524-4518
Attention: Tom Wilson
Address for Notices:
Lehman Commercial Paper Inc.
c/o Bankers Trust Company
Corporate Trust & Agency Group
4 Albany Street, 10th Floor
New York, NY 10006
Attention: Chris Pohl
with a copy to:
Lehman Commercial Paper Inc.
101 Hudson Street, 30th Floor
Jersey City, NJ 07302
Telecopier No.: (201) 524-5847
Telephone No.: (201) 524-4518
Credit Agreement
- 170 -
Attention: Tom Wilson
Lehman Commercial Paper Inc.
3 World Financial Center, 10th Floor
New York, NY 10285
Telecopier No.: (212) 528-0819
Telephone No.: (212) 526-0330
Attention: Michelle Swanson
Credit Agreement
- 171 -
FIRST HAWAIIAN BANK
By /s/ Donald C. Young
----------------------------------
Name: Donald C. Young
Title: Assistant Vice President
Lending Office for all Loans:
First Hawaiian Bank
1132 Bishop Street
19th Floor
Honolulu, HI 96813
Attention: Donald C. Young
Address for Notices:
First Hawaiian Bank
1132 Bishop Street
19th Floor
Honolulu, HI 96813
Telecopier No.: (808) 525-8973/ 6372
Telephone No.: (808) 525-8100
Attention: Brenda Deakins
Credit Agreement
- 172 -
SOUTHERN PACIFIC THRIFT & LOAN
ASSOCIATION
By /s/ Charles D. Martorano
----------------------------------
Name: Charles D. Martorano
Title: Senior Vice President
Lending Office for all Loans:
Southern Pacific Thrift &
Loan Association
12300 Wilshire Boulevard
Los Angeles, CA 90025
Attention: Chris Kelleher/Charles Martorana
Address for Notices:
Southern Pacific Thrift &
Loan Association
12300 Wilshire Boulevard
Los Angeles, CA 90025
Telecopier No.: (310) 207-4067
Telephone No.: (310) 442-3315
Attention: Chris Kelleher/Charles Martorana
Credit Agreement
- 173 -
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By /s/ Jim F. Redman
----------------------------------
Name: Jim F. Redman
Title: Senior Vice President
Lending Office for all Loans:
First Union National Bank of
North Carolina
301 S. College Street, TW-19
Charlotte, NC 28288-0735
Attention: Hilda Weathers
Address for Notices:
First Union National Bankof
North Carolina
301 S. College Street, TW-19
Charlotte, NC 28288-0735
Telecopier No.: (704) 374-4092
Telephone No.: (704) 374-4897
Attention: Hilda Weathers
Credit Agreement
- 174 -
CORESTATES BANK, N.A.
By /s/ Edward L. Kittrell
----------------------------------
Name: Edward L. Kittrell
Title: Vice President
Lending Office for all Loans:
Corestates Bank, N.A.
1339 Chestnut Street, FC 1-8-11-28
Philadelphia, PA 19101
Attention: Diane Quinn
Address for Notices:
Corestates Bank, N.A.
1339 Chestnut Street
FC 1-8-11-28
Philadelphia, PA 19101
Telecopier No.: (215) 786-7721
Telephone No.: (215) 786-4343
Attention: Diane Ouinn
Credit Agreement
- 175 -
BARCLAYS BANK plc
By /s/ Craig J. Lewis
----------------------------------
Name: Craig J. Lewis
Title: Associate Director
Lending Office for all Loans:
Barclays Bank
222 Broadway
12th Floor
New York, NY 10038
Attention: Christina Challenger
Address for Notices:
Barclays Bank
222 Broadway
12th Floor
New York, NY 10038
Telecopier No.: (212) 412-1098/1099
Telephone No.: (212) 412-1193
Attention: Christina Challenger
Credit Agreement
- 176 -
THE SAKURA BANK, LTD.-
By /s/ Masahiro Nakajo
----------------------------------
Name: Masahiro Nakajo
Title: Senior Vice President & Manager
Lending Office for all Loans:
The Sakura Bank, Ltd.
277 Park Avenue
New York, NY 10172
Attention: Loan Administration Dept.
Address for Notices:
The Sakura Bank, Ltd.
277 Park Avenue
New York, NY 10172
Telecopier No.: (212) 644-9565/ 754-6690
Telephone No.: (212) 756-6788
Attention: Loan Administration Dept.
Credit Agreement
- 177 -
DRESDNER BANK AG NEW YORK &
GRAND CAYMAN BRANCHES
By /s/ Brian E. Haughney
----------------------------------
Name: Brian E. Haughney
Title: Assistant Treasurer
By /s/ William E. Lambert
----------------------------------
Name: William E. Lambert
Title: Assistant Vice President
Lending Office for Base Rate Loans:
Dresdner Bank AG
75 Wall Street
New York, NY 10005-2889
Lending Office for Eurodollar Loans:
Dresdner Bank AG
Grand Cayman Branch
75 Wall Street
New York, NY 10005-2889
Address for Notices:
Dresdner Bank
75 Wall Street
New York, NY 10005-2889
Telecopier No.: (212) 429-2130
Telephone No.: (212) 429-2288
Attention: Laura Lam
Credit Agreement
- 178 -
MELLON BANK, N.A.
By /s/ John T. Kranefuss
----------------------------------
Name: John T. Kranefuss
Title: Assistant Vice President
Lending Office for all Loans:
Mellon Bank, N.A.
Room 2306, 3MBC
Pittsburgh, PA 15259
Address for Notices:
Mellon Bank, N.A.
Room 2306, 3MBC
Pittsburgh, PA 15259
Telecopier No.: (412) 236-2027/2028
Telephone No.: (412) 236-4749
Attention: Carol Pitrelli
Credit Agreement
- 179 -
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Michael P. King
----------------------------------
Name: Michael P. King
Title: Corporate Banking Officer
Lending Office for all Loans:
The First National Bank of Chicago
1 First National Plaza
10th Floor
Suite 0634
Chicago, IL 60670
Address for Notices:
The First National Bank of Chicago
1 First National Plaza
10th Floor
Suite 0634
Chicago, IL 60670
Telecopier No.: (312) 732-4840/7091
Telephone No.: (312) 732-4794
Attention: Ron Cromey
Credit Agreement
- 180 -
THE FIRST NATIONAL BANK OF MARYLAND
By /s/ W. Blake Hampson
----------------------------------
Name: W. Blake Hampson
Title: Vice President
Lending Office for all Loans:
The First National Bank of Maryland
Communications Banking Division
Mail Code 101-511
25 South Charles Street
Baltimore, MD 21203
Attention: Barbara Bennett
Communications Banking Specialist
Address for Notices:
The First National Bank of Maryland
Communications Banking Division
Mail Code 101-511
25 South Charles Street
Baltimore, MD 21203
Telecopier No.: (410) 244-4746
Telephone No.: (410) 244-4930
Attention: Mark L. Cook
Senior Vice President
Credit Agreement
- 181 -
BANQUE NATIONALE DE PARIS
By /s/ Serge Desrayaud
----------------------------------
Name: Serge Desrayaud
Title: Vice President/Team Leader
By /s/ Pamela Lucash
----------------------------------
Name: Pamela Lucash
Title: Assistant Treasurer
Lending Office for all Loans:
Banque Nationale de Paris
499 Park Avenue
New York, NY 10022-1078
Attention: Julie Requena
Address for Notices:
Banque Nationale de Paris
499 Park Avenue
New York, NY 10022-1078
Telecopier No.: 212-418-8269/415-9805
Telephone No.: 212-415-9655
Attention: Julie Requena
Credit Agreement
- 182 -
THE SANWA BANK LTD.
By /s/ Christian Kambour
----------------------------------
Name: Christian Kambour
Title: Assistant Vice President
Lending Office for all Loans:
The Sanwa Bank Ltd.
55 East 52nd Street
New York, NY 10055
Attention: Renko Hara
Loan Administration
Credit Contract:
Christian Kambour
The Sanwa Bank Ltd.
55 East 52nd Street
New York, NY 10055
Phone: (212) 339-6232
Fax: (212) 754-1304
Administrative Contact:
Renko Hara
Loan Administration
The Sanwa Bank Ltd.
55 East 52nd Street
New York, NY 10055
Phone: (212) 339-6390
Fax: (212) 754-2368
Credit Agreement
- 183 -
PNC BANK, NATIONAL ASSOCIATION
By /s/ Christopher Chaplin
----------------------------------
Name: Christopher Chaplin
Title: Banking Officer
Lending Office for all Loans:
PNC Bank, N.A.
Communications Banking Divisions
MS F5-F012-09-1
Land Title Building
100 South Broad Street
Philadelphia, PA 19110
Attention: Jeffrey Hauser
Vice President
Address for Notices:
PNC Bank, N.A.
Communications Banking Division/
MS F5-F012-09-l
Land Title Building
100 South Broad Street
Philadelphia, PA 19110
Telecopier No.: (215) 585-6680
Telephone No.: (215) 585-6468
Attention: Jeffrey Hauser
Vice President
Credit Agreement
- 184 -
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ Brian O'Learv
----------------------------------
Name: Brian O'Leary
Title: Vice President
By /s/ Dora DeBlasi-Hyduk
----------------------------------
Name: Dora DeBlasi-Hyduk
Title: Vice President
Lending Office for all Loans:
Compagnie Financiere de CIC et de
l'Union Europeenne
520 Madison Avenue
37th Floor
New York, NY 10022
Attention: Louvenia Davis
Address for Notices:
Compagnie Financiere de CIC et de
1'Union Europeenne
520 Madison Avenue
37th Floor
New York, NY 10022
Telecopier No.: (212) 715-4535/4477
Telephone No.: (212) 715-4681
Attention: Louvenia Davis
Credit Agreement
- 185 -
MERCANTILE BANK OF ST. LOUIS,
NATIONAL ASSOCIATION
By /s/ Gregory D. Knudsen
----------------------------------
Name: Gregory D. Knudsen
Title: Vice President
Lending Office for all Loans:
Mercantile Bank of St. Louis,
National Association
7th and Washington, 12-3
St. Louis, MO 63101
Attention: Tonja Sadl
Eloise Engman
Address for Notices:
Mercantile Bank of St. Louis,
National Association
7th and Washington, 12-3
St. Louis, MO 63101
Telecopier No.: (314) 425-8292/2162
Telephone No.: (314) 425-2014
Attention: Tonja Sadl
Eloise Engman
Credit Agreement
- 186 -
MICHIGAN NATIONAL BANK
By /s/ Stephane E. Lubin
----------------------------------
Name: Stephane E. Lubin
Title: Vice President
Lending Office for all Loans:
Michigan National Bank
27777 Inkster Road
Farmington Hills, MI 48334
Address for Notices:
Michigan National Bank
27777 Inkster Road
Farmington Hills, MI 48334
Telecopier No.: (810) 473-4345
Telephone No.: (810) 473-4380
Attention: Stephane E. Lubin
Credit Agreement
- 187 -
THE NIPPON CREDIT BANK, LTD.
By /s/ David C. Carrington
---------------------------
Name: David C. Carrington
Title: Vice President and Manager
Lending Office for all Loans:
The Nippon Credit Bank, Ltd.
245 Park Avenue, 30th Floor
New York, NY 10167
Address for Notices:
The Nippon Credit Bank, Ltd.
245 Park Avenue, 30th Floor
New York, NY 10067
Telecopier No.: (212) 697-8034/490-3895
Telephone No.: (212) 984-1338
Attention: David Carrington
Credit Agreement
- 188 -
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH
By /s/ Dana W. Hemenway
--------------------
Name: Dana W. Hemenway
Title: Vice President
By /s/ W. Jeffrey Vollack
-----------------------
Name: W. Jeffrey Vollack
Title: Vice President, Manager
Lending Office for all Loans:
Rabobank Nederland, New York Branch
245 Park Avenue
New York, NY 10067
Address for Notices:
Rabobank Nederland, New York Branch
245 Park Avenue
New York, NY 10067
Telecopier No.: (212) 916-7830
Telephone No.: (212) 916-7845
Attention: Debra Rivers/ Madeline Ricci
Corporate Services Dept.
with a copy to:
Rabobank Nederland
300 South Wacker Drive
Suite 3500
Chicago, IL 60606
Telecopier No.: (312) 408-8240
Telephone No.: (312) 408-8248
Attention: Douglas W. Zylstra
Credit Agreement
- 189 -
THE ROYAL BANK OF SCOTLAND plc
By /s/ Grant F. Stoddart
----------------------
Name: Grant F. Stoddart
Title: Senior Vice President & Manager
Lending Office for all Loans:
The Royal Bank of Scotland plc
Wall Street Plaza 88 Pine Street
26th Floor
New York, NY 10005
Attention: Karen Stefancic
Address for Notices:
The Royal Bank of Scotland plc
Wall Street Plaza
88 Pine Street
26th Floor
New York, NY 10005
Telecopier No.: (212) 480-0791/269-8929
Telephone No.: (212) 269-3390
Attention: Helaine Griffin
Credit Agreement
- 190 -
SOCIETY NATIONAL BANK
By /s/ Jason R. Weaver
-------------------
Name: Jason R. Weaver
Title: Assistant Vice President
Lending Office for all Loans:
Society National Bank
127 Public Square
Mail Code OH-01-27-0602
Cleveland, OH
Attention: Janice Darden
Address for Notices:
Society National Bank
127 Public Square
Mail Code OH-01-27-0602
Cleveland, OH
Telecopier No.: (216) 689-4666
Telephone No.: (216)689-4460
Attention: Janice Darden
Credit Agreement
- 191 -
BANKERS TRUST COMPANY
By /s/ Christopher Kinslow
------------------------
Name: Christopher Kinslow
Title: Vice President
Lending Office for all Loans:
Bankers Trust Company
130 Liberty Street
New York, NY 10006
Attention: Robert Telesca
Address for Notices:
Bankers Trust Company
130 Liberty Street
New York, NY 10006
Telecopier No.: (212) 250-7351/ 6029
Telephone No.: (212) 250-7342
Attention: Robert Telesca
Credit Agreement
- 192 -
FLEET NATIONAL BANK
By /s/ Lynne S. Randall
--------------------
Name: Lynne S. Randall
Title: Vice President
Lending Office for all Loans:
Fleet National Bank
111 Westminster Street
Providence, RI 02903
Attention: Denise Berard
Address for Notices:
Fleet National Bank
56 East 42nd Stree
New York, NY 10017
Telecopier No.: (212) 907-5610
Telephone No.: (212) 907-5207
Attention: Lynne Randall
Credit Agreement
- 193 -
HIBERNIA NATIONAL BANK
By /s/ Troy J. Vil1afarra
----------------------
Name: Troy J. Villafarra
Title: Vice President
Lending Office for all Loans:
Hibernia National Bank
313 Carondelet Street
New Orleans, LA 70130
Attention: Troy J. Villafarra
Address for Notices:
Hibernia National Bank
313 Caronde1et Street
New Or1eans, LA 70130
Telecopier No.: (504) 533-5344
Telephone No.: (504) 533-2738
Attention: Troy J. Villafarra
Credit Agreement
- 194 -
LTCB TRUST COMPANY
By /s/ John A. Krob
-----------------
Name: John A. Krob
Title: Senior Vice President
Lending Office for all Loans:
LTCB Trust Company
165 Broadway
49th Floor
New York, NY 10006
Attention: Winston Brown
Address for Notices:
LTCB Trust Company
165 Broadway
49th F1oor
New York, NY 10006
Telecopier No.: (212) 608-3081
Telephone No.: (212) 335-4854
Attention: Winston Brown
Credit Agreement
- 195 -
THE TORONTO-DOMINION BANK
By /s/ Debbie A. Greene
--------------------
Name: Debbie A. Greene
Title: Vice President
Lending Office for all Loans:
Toronto Dominion (New York), Inc.
909 Fannin Street
17th F1oor
Houston, TX 77010
Telecopier No.: (713) 951-9921
Telephone No.: (713) 653-8245
Attention: Debbie Greene
Address for Notices:
The Toronto-Dominion Bank
31 West 52nd Street
New York, NY 10019-6101
Telecopier No.: (212) 262-1928
Telephone No.: (212) 468-0716
Attention: Paul Stamoulis
Credit Agreement
- 196 -
THE FUJI BANK, LTD., NEW YORK BRANCH
By /s/ Teiji Teramoto
-------------------
Name: Teiji Teramoto
Title: Vice President & Manager
Lending Office for all Loans:
The Fuji Bank, Ltd.
New York Branch
Two World Trade Center
79th Floor
New York, NY 10048
Attention: Kathleen Barsotti
Telecopier No.: (212) 912-0516
Telephone No.: (212) 898-2065
Address for Notices:
The Fuji Bank, Ltd.
New York Branch
Two World Trade Center
79th Floor
New York, NY 10048
Telecopier No.: (212) 912-0516
Telephone No.: (212) 898-2088
Attention: Joseph D'Virgilio
Credit Agreement
- 197 -
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Lisa C. Gallagher
--------------------
Name: Lisa C. Gallagher
Title: Managing Director
Lending Office for all Loans:
The First National Bank of Boston
100 Federal Street
MS 01-08-08
Boston, MA 02110
Attention: Lisa C. Gallagher
Telecopier No.: (617) 434-3401
Telephone No.: (617) 434-7156
Address for Notices:
The First National Bank of Boston
100 Federal Street
MS 01-08-08
Boston, MA 02110
Telecopier No.: (617) 434-9820
Telephone No.: (617) 434-9725
Attention: Angie Karayiannis
Credit Agreement
- 198 -
THE BANK OF NEW YORK
By /s/ Benjamin Todres
-------------------
Name: Benjamin Todres
Title: Vice President
Lending Office for all Loans:
The Bank of New York
One Wall Street
New York, NY 10286
Attention: Edward F. Ryan, Jr.
Senior Vice President
Address for Notices:
The Bank of New York
One Wall Street
New York, NY 10286
Telecopier No.: (212) 635-8593/ 8595
Telephone No.: (212) 635-8608
Attention: Edward F. Ryan, Jr.
Senior Vice President
Credit Agreement
- 199 -
BANK OF IRELAND GRAND CAYMAN
By /s/ Roger M. Burns
-------------------
Name: Roger M. Burns
Title: Vice President
Lending Office for all Loans:
Bank of Ireland Grand Cayman
640 Fifth Avenue
New York, NY 10019
Attention: Joan Mitchell
Telecopier No.: (212) 586-7752
Telephone No.: (212) 397-1759
Address for Notices:
Bank of Ireland Grand Cayman
640 Fifth Avenue
New York, NY 10019
Telecopier No.: (212) 307-5559
Telephone No.: (212) 408-9409
Attention: Robert Powell
Credit Agreement
- 200 -
UNION BANK OF CALIFORNIA, N.A.
By /s/ Christine P. Ball
---------------------
Name: Christine P. Ball
Title: Vice President
Lending Office for all Loans:
Union Bank of California, N.A.
445 South Figueroa Street
Los Angeles, CA 90071
Attention: Christine Ball
Communications/Media Division
Address for Notices:
Union Bank of California, N.A.
445 South Figueroa Street
Los Angeles, CA 90071
Telecopier No.: (213) 236-5747
Telephone No.: (213) 236-6176
Attention: Christine Ball
Communications/Media Division
Credit Agreement
- 201 -
BANQUE PARIBAS
By /s/ Philippe Vaurchex
----------------------
Name: Philippe Vaurchex
Title: Vice President
By /s/ Nicole Cawley
-----------------------
Name: Nicole Cawley
Title: Vice President
Lending Office for all Loans:
Banque Paribas
787 Seventh Avenue
New York, NY 10019
Attention: John Andersen
Address for Notices:
Banque Paribas
787 Seventh Avenue
New York, NY 10019
Telecopier No.: (212) 841-2217/2146/2147/2148/2149
Telephone No.: (212) 841-2229
Attention: John Andersen
Credit Agreement
- 202 -
ABN AMRO BANK N.V.
By /s/ Ann Schwalbenberg
-----------------------
Name: Ann Schwalbenberg
Title: Vice President
By /s/ John W. Smith
----------------------
Name: John W. Smith
Title: Assistant Vice President
Lending Office for all Loans:
ABN AMRO Bank N.V.
500 Park Avenue
New York, NY 10022
Attention: Ann Schwalbenberg
Address for Notices:
ABN AMRO Bank N.V.
500 Park Avenue
New York, NY 10022
Telecopier No.: (212) 446-4203
Telephone No.: (212) 446-4181
Attention: Ann Schwalbenberg
Credit Agreement
- 203 -
BANK OF HAWAII
By /s/ Elizabeth O. MacLean
------------------------
Name: Elizabeth O. MacLean
Title: Vice President
Lending Office for all Loans:
Bank of Hawaii
130 Merchant Street
20th Floor
Honolulu, HI 96813
Address for Notices:
Bank of Hawaii
1839 S. Alma School Rd.
Suite 150
Mesa, AZ 85210
Telecopier No.: (602) 752-8007
Telephone No.: (212) 752-8019
Attention: Elizabeth MacLean
Credit Agreement
- 204 -
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By /s/ Frederick K. Kammler
------------------------
Name: Frederick K. Kammler
Title: Vice President
By /s/ William C. Maier
--------------------
Name: William C. Maier
Title: Vice President - Group Manager
Lending Office for all Loans:
Banque Francaise du Commerce Exterieur
645 Fifth Avenue
20th Floor
New York, NY 10022
Address for Notices:
Banque Francaise du Commerce Exterieur
645 Fifth Avenue
20th Floor
New York, NY 10022
Telecopier No.: (212) 872-5045
Telephone No.: (212) 872-5041
Attention: Frederick Kammler, Vice President
Bill Maier, Group Manager
Credit Agreement
- 205 -
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Patricia Loret de Mola
--------------------------
Name: Patricia Loret de Mola
Title: Senior Vice President
Lending Office for all Loans:
The Mitsubishi Trust and Banking Corporation
520 Madison Avenue
26th F1oor
New York, NY 10022
Attention: Susan LeFevre
Address for Notices:
The Mitsubishi Trust and Banking Corporation
520 Madison Avenue
26th F1oor
New York, NY 1002
Telecopier No.: (212) 644-6825/593-4691
Telephone No.: (212) 891-8243
Attention: Susan LeFevre
Credit Agreement
- 206 -
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Julie L. Zarenko
------------------------
Name: Julie L. Zarenko
Title: Credit Officer
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center
Suite 4911
New York, NY 10048
Attention: Julie Zarenko
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center
Suite 4911
New York, NY 10048
Telecopier No.: (212) 524-0579/(212) 912-1879
Telephone No.: (212) 432-6632
Attention: Julie Zarenko
Credit Agreement
- 207 -
NATIONSBANK, N.A.
By /s/ Jennifer O. Bishop
--------------------
Name: Jennifer O. Bishop
Title: Vice President
Lending Office for all Loans:
NationsBank, N.A.
901 Main Street, 64
Dallas, TX 75202
Address for Notices:
NationsBank, N.A.
101 South Tryon
NationsBank Plaza
Charlotte, NC 28255
Telecopier No.: (704) 386-8694
Telephone No.: (704) 386-8201
Attention: Judy Dudley
Credit Agreement
- 208 -
CIBC, INC.
By /s/ Lorain C. Granberg
---------------------
Name: Lorain C. Granberg
Title: Authorized Signatory
Lending Office for all Loans:
CIBC, Inc.
425 Lexington Avenue
New York, NY 10017
Address. for Notices:
CIBC, Inc.
425 Lexington Avenue
New York, NY 10017
Telecopier No.: (212) 856-3558
Telephone No.: (212) 856-3630
Attention: Lorain C. Granberg
Credit Agreement
- 209 -
BANK OF AMERICA, ILLINOIS
By /s/ Carl F. Salas
----------------------------
Name: Carl F. Salas
Title: Vice President
Lending Office for all Loans:
Bank of America, Illinois
231 South LaSalle Street
Chicago, IL 60697
Address for Notices:
Bank of America, Illinois
335 Madison Avenue
New York, NY 10017
Telecopier No.: (212) 503-7173
Telephone No.: (212) 503-8425
Attention: Carl Salas
Credit Agreement
- 210 -
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By /s/ Jeffrev W. Maillet
--------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President, Portfolio Manager
Lending Office for all Loans:
Van Kampen American Capital Prime
Rate Income Trust
One Parkview Plaza
Oakbrook Terrace, IL 60181
Address for Notices:
Van Kampen American Capital Prime
Rate Income Trust
One Parkview Plaza
Oakbrook Plaza
Oakbrook Terrace, IL 60181
Telecopier No.: (708) 684-6740/6741
Telephone No.: (708) 684-6479
Attention: Brian Murphy
with a copy to:
State Street Bank & Trust
Corporate Trust Department
P.O. Box 778
Boston, MA 02102
Telecopier No.: (617) 664-5366/5367
Telephone No.: (617) 664-5481
Attention: Laura Magazu
Credit Agreement
- 211 -
NEW YORK LIFE INSURANCE COMPANY
By /s/ Adam G. Clemens
----------------------
Name: Adam G. Clemens
\ Title: Investment Vice President
Lending Office for all Loans:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010
Attention: John Cibbarelli
Address for Notices:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010
Telecopier No.: (212) 447-4122
Telephone No.: (212) 576-7016
Attention: John Cibbarelli
Credit Agreement
- 212 -
CHL HIGH YIELD LOAN PORTFOLIO
(A UNIT OF CHEMICAL BANK)
By /s/ Andrew D. Gordon
---------------------
Name: Andrew D. Gordon
Title: Managing Director
Lending Office for all Loans:
CHL High Yield Loan Portfolio
A Unit of Chemical Bank
380 Madison Avenue, 12th Floor
New York, NY 10017
Address for Notices:
CHL High Yield Loan Portfolio
A Unit of Chemical Bank
380 Madison Avenue, 12th Floor
New York, NY 10017
Telecopier No.: (212) 622-0122
Telephone No.: (212) 622-0621
Attention: Joe Nerich
Credit Agreement
- 213 -
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By /s/ John E. Schlifske
---------------------------
Name: John E. Schlifske
Title: Vice President
Lending Office for all Loans:
The Northwestern Mutual Life
Insurance Company
720 East Wisconsin Avenue
Mi1waukee, WI 53202
Attention: Jeff Lueken
Securities Department
Address for Notices:
The Northwestern Mutual Life
Insurance Company
720 East Wisconsin Avenue
Mi1waukee, WI 53202
Telecopier No.: (414) 299-7124
Telephone No.: (414) 299-2572
Attention: Jeff Lueken
Securities Department
Credit Agreement
- 214 -
PRIME INCOME TRUST
By /s/ Rafael Scolari
-------------------
Name: Rafael Scolari
Title: Vice President, Portfolio Manager
Lending Office for all Loans:
Prime Income Trust
2 World Trade Center
72nd Floor
New York, NY 10048
Address for Notices:
Prime Income Trust
2 World Trade Center
72nd F1oor
New York, NY 10048
Telecopier No.: (212) 392-5345
Telephone No.: (212) 392-5686
Attention: Rafael Scolari
Credit Agreement
- 215 -
PROTECTIVE LIFE INSURANCE COMPANY
By /s/ Mark K. Okada, CFA
---------------------------
Name: Mark K. Okada, CFA
Title: Principal
Protective Asset Management Co.
Lending Office for all Loans:
Protective Life Insurance company
1150 Two Galleria Tower
13455 Noel Road, LB #45
Dallas, TX 75240
Address for Notices:
Protective Life Insurance company
1150 Two Galleria Tower
13455 Noel Road, LB #45
Dallas, TX 75240
Telecopier No.: (214) 233-4343
Telephone No.: (214) 233-4300
Attention: Mark K. Okada
Credit Agreement
- 216 -
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By /s/ John W. Fraser
---------------------------
Name: John W. Fraser
Title: Authorized Signatory
Lending Office for all Loans:
Merrill Lynch Asset Management
800 Scudders Mill Road, Area 2C
Plainsboro, NJ 08536
Address for Notices:
Merrill Lynch Senior Floating Rate Fund, Inc.
800 Scudders Mill Road, Area 2C
Plainsboro, NJ 08536
Telecopier No.: (609) 282-2550
Telephone No.: (609) 282-3102
Attention: Jill Montanye
with a copy to:
MLAM Accounting
500 College Road, 4E
Plainsboro, NJ 08536
Telecopier No.: (609) 282-7612
Telephone No.: (609) 282-7705
Attention: John Dugan
Bank of New York
90 Washington Street
12th Floor
New York, NY 10286
Telecopier No.: (212) 495-2935/2936/2937
Telephone No.: (212) 495-2929
Attention: Nick Ruggiero
Credit Agreement
- 217 -
Credit Agreement
- 218 -
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ John W. Fraser
---------------------
Name: John W. Fraser
Title: Authorized Signatory
Lending Office for all Loans:
Merrill Lynch Asset Management
800 Scudders Mill Road, Area 2C
Plainsboro, NJ 08536
Address for Notices:
Senior High Income
Portfolio, Inc.
800 Scudders Mill Road, Area 2C
Plainsboro, NJ 08536
Telecopier No.: (609) 282-2550
Telephone No.: (609) 282-3102
Attention: Jill Montanye
with a copy to:
MLAM Accounting
500 College Road, 4E
Plainsboro, NJ 08536
Telecopier No.: (609) 282-7612
Telephone No.: (609) 282-7711
Attention: David Alu
Bank of New York
90 Washington Street
12th F1oor
New York, NY 10286
Telecopier No.: (212) 495-2935/2936/2937
Telephone No.: (212) 495-3415
Attention: Yvette Lee
Credit Agreement
EXHIBIT A-1
[Form of Revolving Credit Note]
PROMISSORY NOTE
$_______________ May 31, 1996
New York, New York
FOR VALUE RECEIVED, SINCLAIR BROADCAST GROUP, INC., a Maryland
corporation (the "Borrower"), hereby promises to pay to __________________ (the
"Lender") [or registered assigns]*, for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) in New York,
New York, the principal sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Revolving Credit Loans
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Revolving Credit Loan, at
such office, in like money and funds, for the period commencing on the date of
such Revolving Credit Loan until such Revolving Credit Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
[This Note and the Revolving Credit Loans evidenced hereby may
be transferred in whole or in part only by registration of such transfer on the
register maintained for such purpose by or on behalf of the Borrower as provided
in Section 12.06(g) of the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Revolving Credit Loan made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation
(or any error in making any such recordation) or endorsement shall not affect
the obligations of the Borrower to make a payment when due of any amount owing
under the Credit Agreement or hereunder in respect of the Revolving Credit Loans
made by the Lender.
This Note is one of the Revolving Credit Notes referred to in
the Second Amended and Restated Credit Agreement dated as
--------------------
* Bracketed language to be inserted into Registered Notes.
Revolving Credit Note
- 2 -
of May 31, 1996 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between the Borrower, the Subsidiary Guarantors party
thereto, the Lenders party thereto and The Chase Manhattan Bank (National
Association), as Agent, and evidences Revolving Credit Loans made by the Lender
thereunder. Capitalized terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Payment of this Note is secured by certain collateral under
the Security Documents referred to in the Credit Agreement.
Except as permitted by Section 12.06(b) of the Credit
Agreement, this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SINCLAIR BROADCAST GROUP, INC.
By_________________________
Title:
Revolving Credit Note
- 3 -
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or
Converted under the within-described Credit Agreement to the Borrower, on the
dates, in the principal amounts, of the Types, bearing interest at the rates and
having Interest Periods (if applicable) of the durations set forth below,
subject to the payments, Continuations, Conversions and prepayments of principal
set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
- --------- ---- ---- ---- ------ --------- ------ -------
Revolving Credit Note
- 1 -
EXHIBIT A-2
[Form of Tranche A Term Loan Note]
PROMISSORY NOTE
$_______________ May 31, 1996
New York, New York
FOR VALUE RECEIVED, SINCLAIR BROADCAST GROUP, INC., a Maryland
corporation (the "Borrower"), hereby promises to pay to __________________ (the
"Lender") [or registered assigns]*, for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) at 1 Chase
Manhattan Plaza, New York, New York 10081, the principal sum of _______________
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Tranche A Term Loan made by the Lender to the Borrower under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
such Tranche A Term Loan, at such office, in like money and funds, for the
period commencing on the date of such Tranche A Term Loan until such Term Loan
shall be paid in full, at the rates per annum and on the dates provided in the
Credit Agreement.
[This Note and the Tranche A Term Loan evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
register maintained for such purpose by or on behalf of the Borrower as provided
in Section 12.06(g) of the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of the Tranche A Term Loan, and each portion thereof (if
applicable), made by the Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Note, endorsed by the Lender on the schedule
attached hereto or any continuation thereof, provided that the failure of the
Lender to make any such recordation (or any error in making any such
recordation) or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Tranche A Term Loan made by the Lender.
This Note is one of the Tranche A Term Loan Notes referred to
in the Second Amended and Restated Credit Agreement
---------------------------
* Bracketed language to be inserted into Registered Notes.
Tranche A Term Loan Note
- 2 -
dated as of May 31, 1996 (as modified and supplemented and in effect from time
to time, the "Credit Agreement") between the Borrower, the Subsidiary Guarantors
party thereto, the Lenders party thereto and The Chase Manhattan Bank (National
Association), as Agent, and evidences the Tranche A Term Loan made by the Lender
thereunder. Capitalized terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Tranche A Term Loans upon the terms and conditions specified therein.
Payment of this Note is secured by certain collateral under
the Security Documents referred to in the Credit Agreement.
Except as permitted by Section 12.06(b) of the Credit
Agreement, this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SINCLAIR BROADCAST GROUP, INC.
By_________________________
Title:
Tranche A Term Loan Note
- 3 -
SCHEDULE OF TRANCHE A TERM LOANS
This Note evidences Tranche A Term Loans made, and the
respective portions thereof Continued or Converted under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and having Interest Periods (if applicable)
of the durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
- --------- ---- ---- ---- ------ --------- ------ -------
Tranche A Term Loan Note
- 1 -
EXHIBIT A-3
[Form of Tranche B Term Loan Note]
PROMISSORY NOTE
$_______________ May 31, 1996
New York, New York
FOR VALUE RECEIVED, SINCLAIR BROADCAST GROUP, INC., a Maryland
corporation (the "Borrower"), hereby promises to pay to __________________ (the
"Lender") [or registered assigns]*, for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) in New York,
New York, the principal sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Tranche B Term Loan
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of such Tranche B Term Loan, at such
office, in like money and funds, for the period commencing on the date of such
Tranche B Term Loan until such Term Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
[This Note and the Tranche B Term Loan evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
register maintained for such purpose by or on behalf of the Borrower as provided
in Section 12.06(g) of the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of the Tranche B Term Loan, and each portion thereof (if
applicable), made by the Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Note, endorsed by the Lender on the schedule
attached hereto or any continuation thereof, provided that the failure of the
Lender to make any such recordation (or any error in making any such
recordation) or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Tranche B Term Loan made by the Lender.
This Note is one of the Tranche B Term Loan Notes referred to
in the Second Amended and Restated Credit Agreement
----------------------------
* Bracketed language to be inserted into Registered Notes.
Tranche B Term Loan Note
- 2 -
dated as of May 31, 1996 (as modified and supplemented and in effect from time
to time, the "Credit Agreement") between the Borrower, the Subsidiary Guarantors
party thereto, the Lenders party thereto and The Chase Manhattan Bank (National
Association), as Agent, and evidences the Tranche B Term Loan made by the Lender
thereunder. Capitalized terms used but not defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Tranche B Term Loans upon the terms and conditions specified therein.
Payment of this Note is secured by certain collateral under
the Security Documents referred to in the Credit Agreement.
Except as permitted by Section 12.06(b) of the Credit
Agreement, this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SINCLAIR BROADCAST GROUP, INC.
By_________________________
Title:
Tranche B Term Loan Note
- 3 -
SCHEDULE OF TRANCHE B TERM LOANS
This Note evidences Tranche B Term Loans made, and the
respective portions thereof Continued or Converted under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and having Interest Periods (if applicable)
of the durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
- --------- ---- ---- ---- ------ --------- ------ -------
Tranche B Term Loan Note
- 1 -
EXHIBIT A-4
[Form of Tranche C Term Loan Note]
PROMISSORY NOTE
$_______________ _____________, 199_
New York, New York
FOR VALUE RECEIVED, SINCLAIR BROADCAST GROUP, INC., a Maryland
corporation (the "Borrower"), hereby promises to pay to __________________ (the
"Lender") [or registered assigns]*, for account of its respective Applicable
Lending Offices provided for by the Credit Agreement referred to below, at the
principal office of The Chase Manhattan Bank (National Association) in New York,
New York, the principal sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Tranche C Term Loans
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Tranche C Term Loan, at
such office, in like money and funds, for the period commencing on the date of
such Tranche C Term Loan until such Term Loan shall be paid in full, at the
rates per annum and on the dates provided in the Credit Agreement.
[This Note and the Tranche C Term Loans evidenced hereby may
be transferred in whole or in part only by registration of such transfer on the
register maintained for such purpose by or on behalf of the Borrower as provided
in Section 12.06(g) of the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Term Loan made by the Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation (or any error in
making any such recordation) or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Tranche C Term Loans made by the
Lender.
This Note is one of the Tranche C Term Loan Notes referred to
in the Second Amended and Restated Credit Agreement
-------------------------
* Bracketed language to be inserted into Registered Notes.
Tranche C Term Loan Note
- 2 -
dated as of May 31, 1996 (as modified and supplemented and in effect from time
to time, the "Credit Agreement") between the Borrower, the Subsidiary Guarantors
party thereto, the Lenders party thereto and The Chase Manhattan Bank (National
Association), as Agent, and evidences Revolving Credit Loans made by the Lender
thereunder. Terms used but not defined in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Tranche C Term Loans upon the terms and conditions specified therein.
Payment of this Note is secured by certain collateral under
the Security Documents referred to in the Credit Agreement.
Except as permitted by Section 12.06(b) of the Credit
Agreement, this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
SINCLAIR BROADCAST GROUP, INC.
By_________________________
Title:
Tranche C Term Loan Note
- 3 -
SCHEDULE OF TRANCHE C TERM LOANS
This Note evidences Tranche C Term Loans made, Continued or
Converted under the within-described Credit Agreement to the Borrower, on the
dates, in the principal amounts, of the Types, bearing interest at the rates and
having Interest Periods (if applicable) of the durations set forth below,
subject to the payments, Continuations, Conversions and prepayments of principal
set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
- --------- ---- ---- ---- ------ --------- ------ -------
Tranche C Term Loan Note
- 1 -
EXHIBIT B
[Form of Tranche C Term Loan Activation Notice]
TRANCHE C TERM LOAN ACTIVATION NOTICE
To: The Chase Manhattan Bank (National Association)
as Agent under the Credit Agreement
referred to below
Reference is hereby made to the Second Amended and Restated
Credit Agreement dated as of May 31, 1996 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and not defined herein are used herein as defined therein.
This notice is the Tranche C Term Loan Activation Notice
referred to in the Credit Agreement, and the Borrower and each of the Lenders
signatory hereto (the "Tranche C Lenders") hereby notify you that:
1. The Tranche C Term Loan Activation Date is
-----------.
2. The Tranche C Term Loan Commitment of each Tranche C
Lender is set forth opposite such Tranche C Lender's
name on the signature pages hereof under the caption
"Tranche C Term Loan Commitment".
Each of the Tranche C Lenders and the Borrower hereby agrees
that (a) the rate of commitment fee payable by the Borrower to each Tranche C
Lender under Section 2.04 of the Credit Agreement on the daily average unused
amount of such Trance C Lender's Tranche C Term Loan Commitment shall be
______________ and (b) the Applicable Margin for Tranche C Term Loans shall be
______________.
SINCLAIR BROADCAST GROUP, INC.
By____________________________
Name:
Title:
Tranche C Term Loan Activation Notice
- 2 -
Tranche C Term Loan Commitment [NAME OF TRANCHE C LENDER]
- ------------------------------
$
By__________________________
Name:
Title:
CONSENTED TO:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By_______________________
Name:
Title:
Tranche C Term Loan Activation Notice
- 1 -
EXHIBIT C
[Form of Security Agreement]
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT dated as of May
31, 1996, between:
SINCLAIR BROADCAST GROUP, INC., a corporation duly organized
and validly existing under the laws of the State of Maryland (the
"Borrower");
each of the Subsidiaries of the Borrower identified under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereof
(individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, together with the Borrower, the
"Obligors"); and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as agent for
the lenders party to the "Credit Agreement" defined below (in such
capacity, together with its successors in such capacity, the "Agent").
WHEREAS, the Borrower, certain Subsidiary Guarantors (the
"Existing Subsidiary Guarantors"), certain of the lenders (the "Existing
Lenders") and the Agent are parties to an Amended and Restated Credit Agreement
dated as of May 24, 1994 (as heretofore amended, supplemented and otherwise
modified and in effect on the date hereof before giving effect to the amendment
and restatement thereof contemplated by the Credit Agreement (as defined below),
the "Existing Credit Agreement"), and in connection therewith the Borrower, the
Existing Subsidiary Guarantors and the Agent have executed and delivered an
Amended and Restated Security Agreement dated as of May 24, 1994 (as heretofore
amended, supplemented and otherwise modified and in effect on the date hereof
before giving effect to the amendment and restatement contemplated hereby, the
"Existing Security Agreement") pursuant to which the Borrower and the Existing
Subsidiary Guarantors granted to the Agent, for the benefit of the Existing
Lenders, a security interest in the Collateral referred to therein.
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Borrower, the Subsidiary Guarantors and certain lenders
(collectively, the "Lenders") and the Agent are entering into a Second Amended
and Restated Credit Agreement dated as of May 31, 1996 (as modified and
supplemented and in effect from time to time (including, without limitation, to
increase the amount of credit to be extended thereunder), the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for the
extension and renewal of the Borrower's indebtedness under the Existing Credit
Agreement and
Security Agreement
- 2 -
for additional extensions of credit to the Borrower. In addition, the Borrower
may now or hereafter from time to time be obligated to various of the Lenders in
respect of certain Interest Rate Protection Agreements (as defined in the Credit
Agreement) (such obligations being herein referred to as the "Other
Indebtedness").
To induce said Lenders to amend and restate the Existing
Credit Agreement and to extend credit thereunder and to extend credit to the
Borrower which would constitute Other Indebtedness, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Obligors and the Agent hereby agree that the Existing Security
Agreement shall be hereby amended and restated to read as follows:
Section 1. Definitions. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein:
"Accounts" shall have the meaning ascribed thereto in Section
3(d) hereof.
"Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Collateral Account" shall have the meaning ascribed thereto
in Section 4.01 hereof.
"Copyright Collateral" shall mean all Copyrights, whether now
owned or hereafter acquired by any Obligor, including each Copyright
identified in Annex 2 hereto.
"Copyrights" shall mean all copyrights, copyright
registrations and applications for copyright registrations, including,
without limitation, all renewals and extensions thereof, the right to
recover for all past, present and future infringements thereof, and all
other rights of any kind whatsoever accruing thereunder or pertaining
thereto.
"Documents" shall have the meaning ascribed thereto in Section
3(j) hereof.
"Equipment" shall have the meaning ascribed thereto in Section
3(h) hereof.
"Instruments" shall have the meaning ascribed thereto in
Section 3(e) hereof.
Security Agreement
- 3 -
"Intellectual Property" shall mean all Copyright Collateral,
all Patent Collateral and all Trademark Collateral, together with (a)
all inventions, processes, production methods, proprietary information,
know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Obligor with respect to any of the foregoing,
in each case whether now or hereafter owned or used including, without
limitation, the licenses or other agreements with respect to the
Copyright Collateral, the Patent Collateral or the Trademark
Collateral, listed in Annex 5 hereto; (c) all information, customer
lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and
automatic machinery software and programs; (d) all field repair data,
sales data and other information relating to sales or service of
products now or hereafter manufactured; (e) all accounting information
and all media in which or on which any information or knowledge or data
or records may be recorded or stored and all computer programs used for
the compilation or printout of such information, knowledge, records or
data; (f) all licenses, consents, permits, variances, certifications
and approvals of governmental agencies now or hereafter held by any
Obligor; and (g) all causes of action, claims and warranties now or
hereafter owned or acquired by any Obligor in respect of any of the
items listed above.
"Inventory" shall have the meaning ascribed thereto in Section
3(f) hereof.
"Issuers" shall mean, collectively, the respective
corporations identified beneath the names of the Obligors in Annex 1
hereto under the caption "Issuer".
"Makers" shall mean, collectively, the respective Persons
identified beneath the names of the Obligors in Annex 7 hereto under
the caption "Maker".
"Motor Vehicles" shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed
by a certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now owned
or hereafter acquired by any Obligor, including each Patent identified
in Annex 3 hereto.
"Patents" shall mean all patents and patent applications,
including, without limitation, the inventions and improvements
described and claimed therein together with
Security Agreement
- 4 -
the reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and payments for past
or future infringements thereof, the right to sue for past, present and
future infringements thereof, and all rights corresponding thereto
throughout the world.
"Pledged Notes" shall mean the notes listed in Annex 7
attached hereto and all other evidence of indebtedness owing to any of
the Obligors by any of the Credit Parties, the Smith Brothers, WPTT,
Inc., a Maryland corporation, and Bay Television, Inc., a Florida
corporation.
"Pledged Stock" shall have the meaning ascribed thereto in
Section 3(a) hereof.
"Secured Obligations" shall mean, collectively, (a) the
principal of and interest on the Loans made by the Lenders to, and the
Note(s) held by each Lender of, the Borrower, all Reimbursement
Obligations and interest thereon and all other amounts from time to
time owing to the Lenders or the Agent by the Credit Parties under the
Basic Documents, (b) all Other Indebtedness and interest thereon, (c)
all obligations of the Subsidiary Guarantors under the Credit Agreement
and the other Basic Documents (including, without limitation, in
respect of their Guarantee under Section 6 of the Credit Agreement),
and (d) all obligations of the Obligors to the Lenders and the Agent
hereunder.
"Stock Collateral" shall mean, collectively, the Collateral
described in clauses (a) through (c) of Section 3 hereof, together with
all other certificates, shares, securities, properties or moneys as may
from time to time be pledged hereunder pursuant to said clauses (a)
through (c), and the proceeds of and to any such property and, to the
extent related to any such property or such proceeds, all books,
correspondence, credit files, records, invoices and other papers.
"Trademark Collateral" shall mean all Trademarks, whether now
owned or hereafter acquired by any Obligor, including each Trademark
identified in Annex 4 hereto. Notwithstanding the foregoing, the
Trademark Collateral does not and shall not include any Trademark which
would be rendered invalid, abandoned, void or unenforceable by reason
of its being included as part of the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and
service marks, logos, trademark and service mark
Security Agreement
- 5 -
registrations, and applications for trademark and service mark
registrations, including, without limitation, all renewals of trademark
and service mark registrations, all rights corresponding thereto
throughout the world, the right to recover for all past, present and
future infringements thereof, all other rights of any kind whatsoever
accruing thereunder or pertaining thereto, together, in each case, with
the product lines and goodwill of the business connected with the use
of, and symbolized by, each such trade name, trademark and service
mark.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
Section 2. Representations and Warranties. Each Obligor
represents and warrants to the Lenders and the Agent that:
(a) such Obligor is the sole beneficial owner of the
Collateral in which it purports to grant a security interest pursuant
to Section 3 hereof and no Lien exists or will exist upon any such
Collateral at any time (and, with respect to the Stock Collateral, no
right or option to acquire the same exists in favor of any other
Person), except for Liens permitted under Section 9.06 of the Credit
Agreement and except for the pledge and security interest in favor of
the Agent for the benefit of the Lenders created or provided for
herein, which pledge and security interest constitute a perfected
pledge and security interest in and to all of such Collateral (other
than Intellectual Property registered or otherwise located outside of
the United States of America) subject to no equal or prior Lien except
for Liens permitted under said Section 9.06;
(b) the Pledged Stock evidenced by the certificates identified
under the name of such Obligor in Annex 1 hereto is, and all other
Pledged Stock in which such Obligor shall hereafter grant a security
interest pursuant to Section 3 hereof will be, duly authorized, validly
issued, fully paid and nonassessable and none of such Pledged Stock is
or will be subject to any contractual restriction, or any restriction
under the charter or by-laws of the respective Issuers of such Pledged
Stock, upon the transfer of such Pledged Stock (except for any such
restriction contained herein or in the Credit Agreement);
(c) the Pledged Stock evidenced by the certificates identified
under the name of such Obligor in Annex 1 hereto constitutes all of the
issued and outstanding shares of
Security Agreement
- 6 -
capital stock of any class of the Issuers beneficially owned by such
Obligor on the date hereof (whether or not registered in the name of
such Obligor) and said Annex 1 correctly identifies, as at the date
hereof, the respective Issuers of such Pledged Stock, the respective
class and par value of the shares comprising such Pledged Stock and the
respective number of shares (and registered owner thereof) evidenced by
each such certificate;
(d) Annexes 2, 3 and 4 hereto, respectively, set forth under
the name of such Obligor a complete and correct list of all Copyrights,
Patents, and Trademarks owned by such Obligor on the date hereof;
except pursuant to licenses and other user agreements entered into by
such Obligor in the ordinary course of business, which are listed in
Annex 5 hereto, such Obligor owns and possesses the right to use, and
has done nothing to authorize or enable any other Person to use, any
Copyright, Patent, or Trademark listed in said Annexes 2, 3 and 4, and
all registrations listed in said Annexes 2, 3 and 4 are valid and in
full force and effect; except as may be set forth in said Annex 5, the
Obligors own and possess the right to use all Copyrights, Patents, and
Trademarks;
(e) Annex 5 hereto sets forth a complete and correct list of
all licenses and other user agreements included in the Intellectual
Property on the date hereof;
(f) to such Obligor's knowledge, (i) except as set forth in
Annex 5 hereto, there is no violation by others of any right of such
Obligor with respect to any Copyright, Patent, or Trademark listed in
Annexes 2, 3 and 4 hereto, respectively, under the name of such Obligor
and (ii) such Obligor is not infringing in any respect upon any
Copyright, Patent, or Trademark of any other Person; and no proceedings
have been instituted or are pending against such Obligor or, to such
Obligor's knowledge, threatened, and no claim against such Obligor has
been received by such Obligor, alleging any such violation, except as
may be set forth in said Annex 5;
(g) such Obligor does not own any Trademarks registered in the
United States of America to which the last sentence of the definition
of Trademark Collateral applies;
(h) the Pledged Notes identified under the name of such
Obligor in Annex 7 hereto constitute all of the Pledged Notes
beneficially owned by such Obligor on the date hereof, and said Annex 7
correctly identifies, as at the date hereof, the respective Makers of
such Pledged Notes and the respective outstanding principal amounts
thereof; and
Security Agreement
- 7 -
(i) on the date hereof, no Pledged Note is overdue or has been
dishonored or is subject to any defense or adverse claim by any Person.
Section 3. Collateral. Each Obligor hereby pledges and grants
to the Agent, for the benefit of the Lenders as hereinafter provided, a security
interest in all of such Obligor's right, title and interest in the following
property, whether now owned by such Obligor or hereafter acquired and whether
now existing or hereafter coming into existence, and wherever located (all being
collectively referred to herein as "Collateral"), as collateral security for the
prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations owing by such Obligor:
(a) the respective shares of stock of the Issuers evidenced by
the certificates identified in Annex 1 hereto under the name of such
Obligor and all other shares of capital stock of whatever class of the
Issuers, now or hereafter owned by such Obligor, together with in each
case the certificates evidencing the same (collectively, the "Pledged
Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of such Obligor under
any provision prohibiting such action hereunder or under the Credit
Agreement, in the event of any consolidation or merger in which any
Issuer is not the surviving corporation, all shares of each class of
the capital stock of the successor corporation (unless such successor
corporation is such Obligor itself) formed by or resulting from such
consolidation or merger;
(d) all accounts and general intangibles (each as defined in
the Uniform Commercial Code) of such Obligor constituting any right to
the payment of money, including (but not limited to) (i) all moneys due
and to become due to such Obligor (A) in respect of any loans or
advances, (B) for Inventory or Equipment or other goods sold or leased
or for services rendered, (C) in respect of network affiliation,
programming, retransmission program supplier
Security Agreement
- 8 -
and other similar contracts and agreements with licensed common
carriers or others relating to the transmission, retransmission or
delivery of programming to others, (D) under any guarantee (including a
letter of credit) of the purchase price of Inventory or Equipment sold
by such Obligor and (E) in respect of the sale, barter or exchange by
any Obligor of advertising or programming time or services and (ii) all
tax refunds (such accounts, general intangibles, moneys due and to
become due and tax refunds being herein called collectively
"Accounts");
(e) all instruments, chattel paper or letters of credit (each
as defined in the Uniform Commercial Code) of such Obligor evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of
exchange and trade acceptances (herein collectively called
"Instruments");
(f) all inventory (as defined in the Uniform Commercial Code)
of such Obligor, all goods obtained by such Obligor in exchange for
such inventory, and any products made or processed from such inventory
including all substances, if any, commingled therewith or added thereto
(herein collectively called "Inventory");
(g) all Intellectual Property and all other accounts or
general intangibles not constituting Intellectual
Property or Accounts;
(h) all equipment (as defined in the Uniform Commercial Code)
of such Obligor, including, without limitation, all machinery,
amplifiers, transmitters, converters, cables, antennae, earth stations,
towers, cameras, connections, office supplies, fixtures, furniture, all
tangible personal property used in the operation of any television
systems or franchise, all studio transmitter links and other signal
transmission and reception equipment and Motor Vehicles (herein
collectively called "Equipment");
(i) each contract and other agreement of such Obligor relating
to the sale, barter or exchange or other disposition of advertising or
programming time or of Inventory or Equipment, in each case to the
maximum extent assignable;
(j) all documents of title (as defined in the Uniform
Commercial Code) or other receipts of such Obligor covering, evidencing
or representing Inventory or Equipment (herein collectively called
"Documents");
Security Agreement
- 9 -
(k) all rights, claims and benefits of such Obligor against
any Person arising out of, relating to or in connection with
programming, Inventory or Equipment purchased by such Obligor,
including, without limitation, any such rights, claims or benefits
against any Person storing or transporting such programming, Inventory
or Equipment;
(l) to the maximum extent such rights are assignable without
violating the respective terms thereof, each Obligor's rights under all
present and future network affiliation, syndicated film and feature
agreements, trade or barter agreements, commitments or undertakings,
advertising and other similar contracts, agreements or licenses for
television or radio programming or advertising services;
(m) the balance from time to time in the Collateral Account;
(n) the Pledged Notes and all moneys or property representing
interest thereon;
(o) all agreements, contracts and leases of personal property
now or hereafter in effect between any Obligor and any other party or
parties relating to the business or operations of any of the Stations,
including, without limitation, all agreements, contracts and leases of
personal property set forth and described in Annex 8 hereto;
(p) all Broadcast Licenses, whether now or hereafter granted
to such Obligor, including, without limitation, each of the Broadcast
Licenses listed in Annex 9 hereto, to the extent the security interest
therein granted or purported to be granted by such Obligor under this
Agreement may be validly granted;
(q) all other tangible and intangible personal property and
fixtures of such Obligor, including, without limitation, all proceeds,
products, offspring, rents, profits, income, benefits, accessions,
substitutions and replacements of and to any of the property of such
Obligor described in clauses (a) through (p) above in this Section 3
(including, without limitation, (i) any proceeds of the Broadcast
Licenses referred to in paragraph (p) above, whether or not a security
interest in such Broadcast Licenses granted or purported to be granted
by such Obligor under this Agreement may be validly granted and (ii)
any proceeds of insurance thereon and all causes of action, claims and
warranties now or hereafter held by such Obligor in respect of any of
the items listed above), and, to the
Security Agreement
- 10 -
extent related to any property described in said clauses or such
proceeds, products and accessions, all books, correspondence, credit
files, records, invoices and other papers, including without limitation
all tapes, cards, computer runs and other papers and documents in the
possession or under the control of such Obligor or any computer bureau
or service company from time to time acting for such Obligor.
Notwithstanding the foregoing clauses (a) through (q) of this Section 3, the
Collateral does not and shall not include (i) the partnership interest of FSF-TV
in the Auburn Tower Partnership, a North Carolina general partnership and (ii)
prior to the termination of the Stock Pledge Agreement dated as of March 27,
1995 between Edwin L. Edwards, Sr., Carolyn C. Smith and Chase, as agent for
certain lenders, any stock acquired from Carolyn C. Smith by any of the Obligors
upon the exercise of the Glencairn Options.
Section 4. Cash Proceeds of Collateral.
---------------------------
4.01 Collateral Account. There is hereby established with the
Agent a cash collateral account (the "Collateral Account") in the name and under
the control of the Agent into which there shall be deposited from time to time
the cash proceeds of any of the Collateral (including proceeds of insurance
thereon) required to be delivered to the Agent pursuant hereto and into which
the Obligors may from time to time deposit any additional amounts which any of
them wishes to pledge to the Agent for the benefit of the Lenders as additional
collateral security hereunder. The balance from time to time in the Collateral
Account shall constitute part of the Collateral hereunder and shall not
constitute payment of the Secured Obligations until applied as hereinafter
provided. Except as expressly provided in the next sentence, the Agent shall
remit the collected balance outstanding to the credit of the Collateral Account
to or upon the order of the Obligors as the Obligors through the Borrower shall
from time to time instruct. However, at any time following the occurrence and
during the continuance of an Event of Default, the Agent may (and, if instructed
by the Lenders as specified in Section 11.03 of the Credit Agreement, shall) in
its (or their) discretion apply or cause to be applied (subject to collection)
the balance from time to time outstanding to the credit of the Collateral
Account to the payment of the Secured Obligations in the manner specified in
Section 5.09 hereof. The balance from time to time in the Collateral Account
shall be subject to withdrawal only as provided herein.
4.02 Proceeds of Accounts. At any time after the occurrence
and during the continuance of an Event of Default,
Security Agreement
- 11 -
each Obligor shall, upon the request of the Agent, instruct all account debtors
and other Persons obligated in respect of all Accounts to make all payments in
respect of the Accounts either (a) directly to the Agent (by instructing that
such payments be remitted to a post office box which shall be in the name and
under the control of the Agent) or (b) to one or more other lenders in the
United States of America (by instructing that such payments be remitted to a
post office box which shall be in the name and under the control of the Agent)
under arrangements, in form and substance satisfactory to the Agent pursuant to
which such Obligor shall have irrevocably instructed such other lender (and such
other bank shall have agreed) to remit all proceeds of such payments directly to
the Agent for deposit into the Collateral Account. All payments made to the
Agent, as provided in the preceding sentence, shall be immediately deposited in
the Collateral Account. In addition to the foregoing, each Obligor agrees that,
at any time after the occurrence and during the continuance of an Event of
Default, if the proceeds of any Collateral hereunder (including the payments
made in respect of Accounts) shall be received by it, such Obligor shall, upon
the request of the Agent, as promptly as possible deposit such proceeds into the
Collateral Account. Until so deposited, all such proceeds shall be held in trust
by such Obligor for and as the property of the Agent and shall not be commingled
with any other funds or property of such Obligor.
4.03 Investment of Balance in Collateral Account. Amounts on
deposit in the Collateral Account shall be invested from time to time in such
Permitted Investments as the Obligors through the Borrower (or, after the
occurrence and during the continuance of a Default, the Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Agent, provided that (a) at any time after the occurrence and during the
continuance of an Event of Default, the Agent may (and, if instructed by the
Lenders as specified in Section 11.03 of the Credit Agreement, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any such
Permitted Investments and to apply or cause to be applied the proceeds thereof
to the payment of the Secured Obligations in the manner specified in Section
5.09 hereof and (b) if requested by the Obligors through the Borrower, such
Permitted Investments may be held in the name and under the control of one or
more of the Lenders (and in that connection each Lender, pursuant to Section
11.10 of the Credit Agreement) has agreed that such Permitted Investments shall
be held by such Lender as a collateral sub-agent for the Agent hereunder).
Section 5. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest
Security Agreement
- 12 -
pursuant to Section 3 hereof, the Obligors hereby jointly and severally agree
with each Lender and the Agent as follows:
5.01 Delivery and Other Perfection. Each Obligor shall:
-----------------------------
(a) if any of the above-described shares, securities, moneys
or property required to be pledged by such Obligor under clauses (a),
(b) and (c) of Section 3 hereof are received by such Obligor, forthwith
either (i) transfer and deliver to the Agent such shares or securities
so received by such Obligor (together with the certificates for any
such shares and securities duly endorsed in blank or accompanied by
undated stock powers or bond powers (as the case may be) duly executed
in blank), all of which thereafter shall be held by the Agent, pursuant
to the terms of this Agreement, as part of the Collateral or (ii) take
such other action as the Agent shall deem necessary or appropriate to
duly record the Lien created hereunder in such shares, securities,
monies or property referred to in said clauses (a), (b) and (c);
(b) deliver and pledge to the Agent any and all Instruments,
endorsed and/or accompanied by such instruments of assignment and
transfer in such form and substance as the Agent may request; provided,
that so long as no Default shall have occurred and be continuing, such
Obligor may retain for collection in the ordinary course any
Instruments received by such Obligor in the ordinary course of business
and the Agent shall, promptly upon request of such Obligor through the
Borrower, make appropriate arrangements for making any Instrument
pledged by such Obligor available to such Obligor for purposes of
presentation, collection or renewal (any such arrangement to be
effected, to the extent deemed appropriate by the Agent, against trust
receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate the pledge and security interest granted
pursuant hereto or to enable the Agent to exercise and enforce its
rights hereunder with respect to such pledge and security interest,
including, without limitation, causing any or all of the Stock
Collateral to be transferred of record into the name of the Agent or
its nominee (and the Agent agrees that if any Stock Collateral is
transferred into its name or the name of its nominee, the Agent will
thereafter promptly give to the respective Obligor copies of any
notices and communications received by it with respect to the Stock
Security Agreement
- 13 -
Collateral pledged by such Obligor hereunder), provided that notices to
account debtors in respect of any Accounts or Instruments shall be
subject to the provisions of clause (i) below;
(d) without limiting the obligations of such Obligor under
Section 5.04(c) hereof, upon the acquisition after the date hereof by
such Obligor of any Equipment covered by a certificate of title or
ownership, cause the Agent to be listed as the lienholder on such
certificate of title and within 120 days of the acquisition thereof
deliver evidence of the same to the Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Agent may reasonably require in order to reflect the
security interests granted by this Agreement;
(f) furnish to the Agent from time to time (but, unless a
Default shall have occurred and be continuing, no more frequently than
quarterly) statements and schedules further identifying and describing
the Copyright Collateral, the Patent Collateral, and the Trademark
Collateral, respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral, and the Trademark
Collateral, as the Agent may reasonably request, all in reasonable
detail;
(g) promptly upon request of the Agent, following receipt by
the Agent of any statements, schedules or reports pursuant to clause
(f) above, modify this Agreement by amending Annexes 2, 3 and/or 4
hereto, as the case may be, to include any Copyright, Patent, or
Trademark which becomes part of the Collateral under this Agreement;
(h) permit representatives of the Agent, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Agent to be present at such Obligor's
place of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies of any
notices or communications received by such Obligor with respect to the
Collateral, all in such manner as the Agent may require; and
(i) upon the occurrence and during the continuance of any
Default, upon request of the Agent, promptly notify (and such Obligor
hereby authorizes the Agent so to notify) each account debtor in
respect of any Accounts or Instruments
Security Agreement
- 14 -
that such Collateral has been assigned to the Agent hereunder, and that
any payments due or to become due in respect of such Collateral are to
be made directly to the Agent.
5.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 9.06 of the Credit Agreement, without the prior written
consent of the Agent, no Obligor shall file or suffer to be on file, or
authorize or permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the Collateral in which
the Agent is not named as the sole secured party for the benefit of the Lenders.
5.03 Preservation of Rights. The Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
5.04 Special Provisions Relating to Certain Collateral.
(a) Stock Collateral and Pledged Notes.
(i) The Obligors will cause the Stock Collateral to constitute
at all times 100% of the total number of shares of each class of capital stock
of each Issuer then outstanding.
(ii) So long as no Event of Default shall have occurred and be
continuing, the Obligors shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Stock Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Note(s) or any other instrument or agreement referred to herein
or therein, provided that the Obligors jointly and severally agree that (x) they
will not vote the Stock Collateral in any manner that is inconsistent with the
terms of this Agreement, the Credit Agreement, the Note(s) or any such other
instrument or agreement and (y) they will not agree to any amendment, supplement
or other modification to any Pledged Note; and the Agent shall execute and
deliver to the Obligors or cause to be executed and delivered to the Obligors
all such proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Obligors may reasonably request for the
purpose of enabling the Obligors to exercise the rights and powers which they
are entitled to exercise pursuant to this Section 5.04(a)(2).
(iii) Unless and until an Event of Default has occurred and is
continuing, the Obligors shall be entitled to receive and retain any dividends
on the Collateral paid in cash out of earned surplus and any cash principal and
interest on the Pledged Notes.
Security Agreement
- 15 -
(iv) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any Lender
exercises any available right to declare any Secured Obligation due and payable
or seeks or pursues any other relief or remedy available to it under applicable
law or under this Agreement, the Credit Agreement, the Note(s) or any other
agreement relating to such Secured Obligation, all dividends and other
distributions on the Collateral shall be paid directly to the Agent and retained
by it in the Collateral Account as part of the Collateral, subject to the terms
of this Agreement, and, if the Agent shall so request in writing, the Obligors
jointly and severally agree to execute and deliver to the Agent appropriate
additional dividend, distribution and other orders and documents to that end,
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Agent shall, upon request of the Obligors
(except to the extent theretofore applied to the Secured Obligations), be
returned by the Agent to the Obligors.
(b) Intellectual Property.
---------------------
(i) For the purpose of enabling the Agent to exercise rights
and remedies under Section 5.05 hereof at such time as the Agent shall be
lawfully entitled to exercise such rights and remedies, and for no other
purpose, each Obligor hereby grants to the Agent, to the extent assignable, an
irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to such Obligor) to use, assign, license or sublicense any of
the Intellectual Property now owned or hereafter acquired by such Obligor,
wherever the same may be located, including in such license reasonable access to
all media in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof.
(ii) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 9.05 of the Credit Agreement which limit
the right of the Obligors to dispose of their property, so long as no Event of
Default shall have occurred and be continuing, the Obligors will be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or
take other actions with respect to the Intellectual Property in the ordinary
course of the business of the Obligors. In furtherance of the foregoing, unless
an Event of Default shall have occurred and be continuing the Agent shall from
time to time, upon the request of the Obligors through the Borrower, execute and
deliver any instruments, certificates or other documents, in the form so
requested, which the Obligors through the Borrower shall have certified are
appropriate (in their judgment) to allow them to take any action permitted above
(including relinquishment of the license provided pursuant to
Security Agreement
- 16 -
clause (i) immediately above as to any specific Intellectual Property). Further,
upon the payment in full of all of the Secured Obligations, cancellation or
termination of the Commitments and Letter of Credit Liabilities and the
termination of all Interest Rate Protection Agreements constituting Other
Indebtedness, or earlier expiration of this Agreement or release of the
Collateral, the Agent shall grant back to the Obligors the license granted
pursuant to clause (i) immediately above. The exercise of rights and remedies
under Section 5.05 hereof by the Agent shall not terminate the rights of the
holders of any licenses or sublicenses theretofore granted by the Obligors in
accordance with the first sentence of this clause (ii).
(c) Motor Vehicles.
--------------
(i) At any time after the occurrence and during the
continuance of an Event of Default, each Obligor shall, upon the request of the
Agent, deliver to the Agent originals of the certificates of title or ownership
for the Motor Vehicles owned by it with the Agent listed as lienholder and take
such other action as the Agent shall deem appropriate to perfect the security
interest created hereunder in such Motor Vehicles.
(ii) Upon the acquisition after the date hereof by any Obligor
of any Motor Vehicle, such Obligor shall deliver to the Agent, at any time after
the occurrence and during the continuance of an Event of Default and upon the
request of the Agent, originals of the certificates of title or ownership for
such Motor Vehicles, together with the manufacturer's statement of origin with
the Agent listed as lienholder; provided, however, if the Motor Vehicle to be
acquired is subject to a purchase money security interest, the Agent shall be
listed as a junior lienholder to the Person holding such purchase money security
interest.
(iii) Without limiting Section 5.10 hereof, each Obligor
hereby appoints the Agent as its attorney-in-fact, effective the date hereof and
terminating upon the termination of this Agreement, for the purpose of (x)
executing on behalf of such Obligor title or ownership applications for filing
with appropriate state agencies to enable Motor Vehicles now owned or hereafter
acquired by such Obligor to be retitled and the Agent listed as lienholder
thereon, (y) filing such applications with such state agencies and (z) executing
such other documents and instruments on behalf of, and taking such other action
in the name of, such Obligor as the Agent may deem necessary or advisable to
accomplish the purposes hereof (including, without limitation, the purpose of
creating in favor of the Agent a perfected lien on the Motor Vehicles and
exercising the rights and remedies of the Agent under Section 5.05 hereof). This
Security Agreement
- 17 -
appointment as attorney-in-fact is irrevocable and coupled with an interest.
(iv) Any certificates of title or ownership delivered pursuant to
the terms hereof shall be accompanied by odometer statements for each Motor
Vehicle covered thereby.
5.05 Events of Default, etc. During the period during which an
Event of Default shall have occurred and be continuing:
(a) each Obligor shall, at the request of the Agent, assemble
the Collateral owned by it at such place or places, reasonably
convenient to both the Agent and such Obligor, designated in its
request;
(b) the Agent may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may extend
the time of payment, arrange for payment in installments, reduce the
rate of interest or, forgive any amount of principal of or otherwise
modify the terms of, any of the Collateral;
(c) the Agent shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral
as if the Agent were the sole and absolute owner thereof (and each
Obligor agrees to take all such action as may be appropriate to give
effect to such right);
(d) the Agent in its discretion may, in its name or in the
name of the Obligors or otherwise, demand, sue for, collect or receive
any money or property at any time payable or receivable on account of
or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(e) the Agent may, upon ten Business Days' prior written
notice to the Obligors of the time and place, with respect to the
Collateral or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the Agent, the Lenders
or any of their respective agents, sell, lease, assign or otherwise
dispose of all or any portion of such Collateral, at such place or
places as the Agent deems best, and for cash or on credit or
Security Agreement
- 18 -
for future delivery (without thereby assuming any credit risk), at
public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable
statute and cannot be waived) and the Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all
of the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale), and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including
any right or equity of redemption (statutory or otherwise), of the
Obligors, any such demand, notice and right or equity being hereby
expressly waived and released. In the event of any sale, assignment, or
other disposition of any of the Trademark Collateral, the goodwill
connected with and symbolized by the Trademark Collateral subject to
such disposition shall be included, and the Obligors shall supply to
the Agent or its designee, for inclusion in such sale, assignment or
other disposition, all Intellectual Property relating to such Trademark
Collateral. The Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so
adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the Agent in
Section 5.04(b)(i) hereof, shall be applied in accordance with Section 5.09
hereof.
The Obligors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Agent may be compelled, with respect to any sale of all or
any part of the Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. The Obligors
acknowledge that any such private sales may be at prices and on terms less
favorable to the Agent than those obtainable through a public sale without such
restrictions, and, notwithstanding such circumstances, agree that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Agent shall have no obligation to engage in public sales and
no obligation to delay the sale of any Collateral for the period of time
necessary to permit the respective Issuer or issuer thereof to register it for
public sale.
Security Agreement
- 19 -
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Obligors shall remain liable for any
deficiency.
5.07 Removals, etc. Without at least 30 days' prior written
notice to the Agent, no Obligor shall (a) maintain any of its books or records
with respect to the Collateral at any office or maintain its chief executive
office or its principal place of business at any place, or permit any Inventory
or Equipment to be located anywhere other than at the address indicated beneath
the signature of the Borrower to the Credit Agreement or at one of the locations
identified in Annex 6 hereto under its name or in transit from one of such
locations to another or (b) change its corporate name, or the name under which
it does business, from the name shown on the signature pages hereto.
5.08 Private Sale. The Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 hereof conducted in a commercially
reasonable manner. Each Obligor hereby waives any claims against the Agent or
any Lender arising by reason of the fact that the price at which the Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale or was less than the aggregate amount of the
Secured Obligations, even if the Agent accepts the first offer received and does
not offer the Collateral to more than one offeree.
5.09 Application of Proceeds. Except as otherwise herein
expressly provided and except as provided below in this Section 5.09, the
proceeds of any collection, sale or other realization of all or any part of the
Collateral pursuant hereto, and any other cash at the time held by the Agent
under Section 4 hereof or this Section 5, shall be applied by the Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Agent and the fees and expenses
of its agents and counsel, and all expenses incurred and advances made
by the Agent in connection therewith;
Next, to the payment in full of the Secured Obligations,
equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise
agree; and
Security Agreement
- 20 -
Finally, to the payment to the respective Obligor, or its
successors or assigns, or as a court of competent jurisdiction may
direct, of any surplus then remaining.
As used in this Section 5, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Obligors or any issuer of or obligor on
any of the Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of any Event
of Default the Agent is hereby appointed the attorney-in-fact of each Obligor
for the purpose of carrying out the provisions of this Section 5 and taking any
action and executing any instruments which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Agent shall be entitled under
this Section 5 to make collections in respect of the Collateral, the Agent shall
have the right and power to receive, endorse and collect all checks made payable
to the order of any Obligor representing any dividend, payment, or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
5.11 Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, each Obligor shall (a) caused to be filed such
financing statements and other documents in such offices as the Agent may
request to perfect the security interests granted by Section 3 of this
Agreement, (b) cause the Agent (to the extent requested by any Lender) to be
listed as the lienholder on all certificates of title or ownership relating to
Motor Vehicles owned by such Obligor and (c) deliver to the Agent (i) all
certificates identified in Annex 1 hereto, accompanied by undated stock powers
duly executed in blank and (ii) all promissory notes identified in Annex 7
hereto, accompanied by undated bond powers duly executed in blank.
5.12 Termination. When all Secured Obligations shall have been
paid in full, the Commitments of the Lenders under the Credit Agreement, all
Letter of Credit Liabilities and the Interest Rate Protection Agreements
constituting Other Indebtedness shall have expired or been terminated, this
Agreement shall terminate, and the Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or
Security Agreement
- 21 -
on the order of the respective Obligors and to be released and canceled all
licenses and rights referred to in Section 5.04(b)(i) hereof. The Agent shall
also execute and deliver to the respective Obligors upon such termination such
Uniform Commercial Code termination statements, certificates for terminating the
Liens on the Motor Vehicles and such other documentation as shall be reasonably
requested by the respective Obligors to effect the termination and release of
the Liens on the Collateral.
5.13 Further Assurances. Each Obligor agrees that, from time
to time upon the written request of the Agent, such Obligor will execute and
deliver such further documents and do such other acts and things as the Agent
may reasonably request in order fully to effect the purposes of this Agreement.
5.14 Release of Motor Vehicles. So long as no Default shall
have occurred and be continuing, upon the request of any Obligor, the Agent
shall execute and deliver to such Obligor such instruments as such Obligor shall
reasonably request to remove the notation of the Agent as lienholder on any
certificate of title for any Motor Vehicle; provided that any such instruments
shall be delivered, and the release effective only upon receipt by the Agent of
a certificate from such Obligor stating that the Motor Vehicle the lien on which
is to be released is to be sold or has suffered a casualty loss (with title
thereto passing to the casualty insurance company therefor in settlement of the
claim for such loss).
Section 6. Miscellaneous.
--------------
6.01 No Waiver. No failure on the part of the Agent or any
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
6.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its "Address for Notices" specified pursuant to Section 12.02 of
the Credit Agreement and shall be deemed to have been given at the times
specified in said Section 12.02.
6.03 Expenses. The Obligors jointly and severally agree to
reimburse each of the Lenders and the Agent for all
Security Agreement
- 22 -
reasonable costs and expenses of the Lenders and the Agent (including, without
limitation, the reasonable fees and expenses of legal counsel) in connection
with (a) any Default and any enforcement or collection proceeding resulting
therefrom, including, without limitation, all manner of participation in or
other involvement with (i) performance by the Agent of any obligations of the
Obligors in respect of the Collateral that the Obligors have failed or refused
to perform, (ii) bankruptcy, insolvency, receivership, foreclosure, winding up
or liquidation proceedings, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Agent in respect thereof, by litigation or otherwise,
including expenses of insurance, (iii) judicial or regulatory proceedings and
(iv) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (b) the enforcement of this Section 6.03, and all such costs and expenses
shall be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3 hereof.
6.04 Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
each Obligor and the Agent (with the consent of the Lenders as specified in
Section 11.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon the Agent and each Lender, each holder of any of the Secured
Obligations and each Obligor.
6.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of each
Obligor, the Agent, the Lenders and each holder of any of the Secured
Obligations (provided, however, that no Obligor shall assign or transfer its
rights hereunder without the prior written consent of the Agent).
6.06 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
6.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
6.08 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. Each Obligor hereby submits to
Security Agreement
- 23 -
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. Each Obligor
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
6.09 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
6.10 Certain Regulatory Requirements. Any provision contained
herein to the contrary notwithstanding, no action shall be taken hereunder by
the Agent or any Lender with respect to any item of Collateral unless and until
all applicable requirements (if any) of the FCC under the Federal Communications
Act of 1934, as amended, and the respective rules and regulations thereunder and
thereof, as well as any other Federal, state or local laws, rules and
regulations of other regulatory or governmental bodies applicable to or having
jurisdiction over any Obligor (or any entity under the control of such Obligor),
have been satisfied with respect to such action and there have been obtained
such consents, approvals and authorizations (if any) as may be required to be
obtained from the FCC and any other governmental authority under the terms of
any license or similar operating right held by such Obligor (or any entity under
the control of such Obligor). It is the intention of the parties hereto that the
Liens in favor of the Agent on the Collateral shall in all relevant aspects be
subject to and governed by said statutes, rules and regulations and that nothing
in this Agreement shall be construed to diminish the control exercised by the
Obligors except in accordance with the provisions of such statutory
requirements, rules and regulations. Each Obligor agrees that upon request from
time to time by the Agent after the occurrence and during the continuance of an
Event of Default, it will use its best efforts to obtain any governmental,
regulatory or third party consents, approvals or authorizations referred to in
this Section 6.10.
6.11 Agents and Attorneys-in-Fact. The Agent may employ agents
and attorneys-in-fact in connection herewith and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it in good faith.
Security Agreement
- 24 -
6.12 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
Security Agreement
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be duly executed as of the day and year first above
written.
SINCLAIR BROADCAST GROUP, INC.
By___________________________
Name:
Title:
Security Agreement
- 26 -
SUBSIDIARY GUARANTORS
---------------------
CHESAPEAKE TELEVISION, INC.
KABB, INC.
KDNL, INC.
KDSM, INC.
KSMO, INC.
SCI - INDIANA, INC.
SCI - SACRAMENTO, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC . SINCLAIR RADIO OF
MEMPHIS, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF WILKES-BARRE, INC.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC.
WDBB, INC.
WLFL, INC.
WLOS, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC.
By
-------------------------------
Name:
Title:
Security Agreement
- 27 -
SUBSIDIARY GUARANTORS
---------------------
CHESAPEAKE TELEVISION
LICENSEE, INC.
FSF TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KDSM LICENSEE, INC.
KSMO LICENSEE, INC.
SCI - INDIANA LICENSEE, INC.
SCI - SACRAMENTO LICENSEE, INC.
SINCLAIR RADIO OF ALBUQUERQUE
LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO
LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE
LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES
LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS
LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE
LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS
LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS
LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC.
SUPERIOR COMMUNICATIONS GROUP, INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
WCGV LICENSEE, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WSMH LICENSEE, INC.
WTTO LICENSEE, INC.
WYZZ LICENSEE, INC.
By
-------------------------
Name:
Title
Security Agreement
- 28 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
--------------------------
Name:
Title:
Security Agreement
EXHIBIT D
[Form of Affiliate Guarantee and Security Agreement]
SECOND AMENDED AND RESTATED
AFFILIATE GUARANTEE AND SECURITY AGREEMENT
SECOND AMENDED AND RESTATED AFFILIATE GUARANTEE AND SECURITY
AGREEMENT dated as of May 31, 1996 between:
CUNNINGHAM COMMUNICATIONS, INC., a corporation duly organized
and validly existing under the laws of Maryland ("Cunningham");
KEYSER INVESTMENT GROUP, INC., a corporation duly organized
and validly existing under the laws of Maryland ("KIG")
GERSTELL DEVELOPMENT LIMITED PARTNERSHIP, a limited
partnership duly organized and validly existing under the laws of
Maryland ("GDLP"; each of Cunningham, KIG and GDLP being herein
referred to as a "Guarantor" and, collectively, as the "Guarantors");
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as agent for
the lenders party to the "Credit Agreement" defined below (in such
capacity, together with its successors in such capacity, the "Agent").
WHEREAS, Sinclair Broadcast Group, Inc. (the "Borrower"),
certain subsidiaries of the Borrower, certain lenders (the "Existing Lenders")
and the Agent are parties to an Amended and Restated Credit Agreement dated as
of May 24, 1994 (as heretofore amended, supplemented and otherwise modified and
in effect on the date hereof before giving effect to the amendment and
restatement thereof contemplated by the Credit Agreement referred to below, the
"Existing Credit Agreement"), and in connection therewith, (a) Cunningham, KIG,
Keyser Communications, Inc. ("KCI"), GDLP and the Agent have executed and
delivered an Amended and Restated Affiliate Guarantee and Security Agreement
dated as of May 24, 1994 (as heretofore amended, supplemented and otherwise
modified and in effect on the date hereof before giving effect to the amendment
and restatement thereof contemplated hereby, the "Existing Affiliate Guarantee
and Security Agreement") pursuant to which Cunningham, KIG, KCI and GDLP
guaranteed the payment of the Guaranteed Obligations therein and granted to the
Agent, for the benefit of the Existing Lenders, a security interest in the
Collateral referred to therein);
WHEREAS, KCI has merged with and into the Borrower;
- 2 -
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Borrower, certain subsidiaries of the Borrower and certain
lenders (collectively, the "Lenders") and the Agent are entering into an Second
Amended and Restated Credit Agreement dated as of May 31, 1996 (as modified and
supplemented and in effect from time to time (including, without limitation, to
increase to amount of credit to be extended thereunder), the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for the
extension and renewal of the Borrower's indebtedness under the Existing Credit
Agreement and for additional extensions of credit to the Borrower. In addition,
the Borrower may now or hereafter from time to time be obligated to various of
the Lenders in respect of certain Interest Rate Protection Agreements (as
defined in the Credit Agreement) (such obligations being herein referred to as
the "Other Indebtedness").
To induce said Lenders to amend and restate the Existing
Credit Agreement and to extend credit thereunder and to extend credit to the
Borrower which would constitute Other Indebtedness, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor has agreed to hereby amend and restate the Existing
Affiliate Guarantee and Security Agreement in its entirety. Accordingly, the
parties hereto hereby agree that the Affiliate Guarantee and Security Agreement
shall be amended and restated to read as follows (it being understood and agreed
that the security interests hereby created, and the rights and remedies afforded
the Agent hereunder, are in all respects subject and subordinate to the Existing
Liens (as defined in Section 1 below):
Section 1. Definitions. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein:
"Accounts" shall have the meaning ascribed thereto in Section
4(d) hereof.
"Collateral" shall have the meaning ascribed thereto in
Section 4 hereof.
"Collateral Account" shall have the meaning ascribed thereto
in Section 5.01 hereof.
"Copyright Collateral" shall mean all Copyrights, whether now
owned or hereafter acquired by any Guarantor, including each Copyright
identified in Annex 2 hereto.
- 3 -
"Copyrights" shall mean all copyrights, copyright
registrations and applications for copyright registrations, including,
without limitation, all renewals and extensions thereof, the right to
recover for all past, present and future infringements thereof, and all
other rights of any kind whatsoever accruing thereunder or pertaining
thereto.
"Documents" shall have the meaning ascribed thereto in Section
4(j) hereof.
"Equipment" shall have the meaning ascribed thereto in Section
4(h) hereof.
"Existing Liens" shall mean the Liens created by the security
agreements, mortgages, indentures, deeds of trust or similar
instruments covering the Properties of the Guarantors on the date
hereof and listed in Annex 7 hereto, as the same may be extended,
renewed or refinanced at any time or from time to time, provided that
no such extension, renewal or refinancing may increase the respective
amounts of the Indebtedness secured by such Liens or extend any such
Lien to cover additional property not theretofore covered by such Lien.
"Guaranteed Obligations" shall have the meaning ascribed
thereto in Section 2.01 hereof.
"Instruments" shall have the meaning ascribed thereto in
Section 4(e) hereof.
"Intellectual Property" shall mean all Copyright Collateral,
all Patent Collateral and all Trademark Collateral, together with (a)
all inventions, processes, production methods, proprietary information,
know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Guarantor with respect to any of the
foregoing, in each case whether now or hereafter owned or used
including, without limitation, the licenses or other agreements with
respect to the Copyright Collateral, the Patent Collateral or the
Trademark Collateral, listed in Annex 5 hereto; (c) all information,
customer lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and
automatic machinery software and programs; (d) all field repair data,
sales data and other information relating to sales or service of
products now or hereafter manufactured; (e) all accounting information
and all media in which or on which any information or knowledge or data
or records may be recorded
- 4 -
or stored and all computer programs used for the compilation or
printout of such information, knowledge, records or data; (f) all
licenses, consents, permits, variances, certifications and approvals of
governmental agencies now or hereafter held by any Guarantor; and (g)
all causes of action, claims and warranties now or hereafter owned or
acquired by any Guarantor in respect of any of the items listed above.
"Inventory" shall have the meaning ascribed thereto in Section
4(f) hereof.
"Issuers" shall mean, collectively, the respective
corporations identified beneath the names of the Guarantors in Annex I
hereto under the caption "Issuer".
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such Property. For purposes of this Agreement, each
Guarantor shall be deemed to own subject to a Lien any Property which
it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to such
Property.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed
by a certificate of title or ownership.
"Net Assets" shall mean, with respect to any Guarantor as at
any date, for purposes of any calculation pursuant to Section 2.07
hereof, an amount equal to the excess of the fair saleable value of the
assets of such Guarantor as at such date (without taking into account
the rights of such Guarantor under Section 2.07 hereof) over the amount
that would be required to pay the probable liabilities of such
Guarantor determined as at such date (excluding the obligations of such
Guarantor under Sections 2.01 and 2.07 hereof) on all of its debts.
"Patent Collateral" shall mean all Patents, whether now owned
or hereafter acquired by any Guarantor, including each Patent
identified in Annex 3 hereto.
"Patents" shall mean all patents and patent applications,
including, without limitation, the inventions and improvements
described and claimed therein together with the reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof,
all income, royalties, damages and payments now or hereafter due and/or
payable
- 5 -
under and with respect thereto, including, without limitation, damages
and payments for past or future infringements thereof, the right to sue
for past, present and future infringements thereof, and all rights
corresponding thereto throughout the world.
"Pledged Stock" shall have the meaning ascribed thereto in
Section 4(a) hereof.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Secured Obligations" shall mean, collectively, (a) the
Guaranteed Obligations and (b) all obligations of the Guarantors to the
Lenders and the Agent hereunder.
"Stock Collateral" shall mean, collectively, the Collateral
described in clauses (a) through (c) of Section 4 hereof, together with
all other certificates, shares, securities, properties or moneys as may
from time to time be pledged hereunder pursuant to said clauses (a)
through (c), and the proceeds of and to any such property and, to the
extent related to any such property or such proceeds, all books,
correspondence, credit files, records, invoices and other papers.
"Trademark Collateral" shall mean all Trademarks, whether now
owned or hereafter acquired by any Guarantor, including each Trademark
identified in Annex 4 hereto. Notwithstanding the foregoing, the
Trademark Collateral does not and shall not include any Trademark which
would be rendered invalid, abandoned, void or unenforceable by reason
of its being included as part of the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and
service marks, logos, trademark and service mark registrations, and
applications for trademark and service mark registrations, including,
without limitation, all renewals of trademark and service mark
registrations, all rights corresponding thereto throughout the world,
the right to recover for all past, present and future infringements
thereof, all other rights of any kind whatsoever accruing thereunder or
pertaining thereto, together, in each case, with the product lines and
goodwill of the business connected with the use of, and symbolized by,
each such trade name, trademark and service mark.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
- 6 -
Section 2. The Guarantee.
2.01 The Guarantee. The Guarantors hereby jointly and
severally guarantee to each Lender and the Agent and their respective successors
and assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Note(s) held by each Lender of, the Borrower, all
Reimbursement Obligations and interest thereon and all other amounts from time
to time owing to the Lenders or the Agent by the Credit Parties under the Basic
Documents and all Other Indebtedness and interest thereon, in each case strictly
in accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). The Guarantors hereby further jointly and
severally agree that if any Credit Party shall fail to pay in full when due
(whether at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of the
Guarantors under Section 2.01 hereof are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the Credit Agreement, the Notes or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.02 that the obligations of the Guarantors
hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not affect
the liability of the Guarantors hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
- 7 -
(b) any of the acts mentioned in any of the provisions of the
Credit Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(d) any lien or security interest granted to, or in favor of,
the Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected;
(e) any of the Guaranteed Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of any Credit Party) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of
any Credit Party);
(f) the Borrower shall be insolvent on the date hereof or
shall become insolvent on the date that any Loan is made; or
(g) the execution and delivery of a Tranche C Term Loan
Activation Notice providing for Tranche C Term Loan Commitments in any
amount.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement (including, without
limitation, marshalling) that the Agent or any Lender exhaust any right, power
or remedy or proceed against the Borrower under the Credit Agreement or the
Notes or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
2.03 Reinstatement. The obligations of the Guarantors under
this Section 2 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantors jointly and
- 8 -
severally agree that they will indemnify the Agent and each Lender on demand for
all reasonable costs and expenses (including, without limitation, fees of
counsel) incurred by the Agent or such Lender in connection with such rescission
or restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
2.04 Subrogation. Each Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Bankruptcy
Code) or otherwise by reason of any payment by it pursuant to the provisions of
this Section 2.
2.05 Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of the Borrower
under the Credit Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 of the Credit Agreement (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 10) for purposes of Section 2.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Borrower and that,
in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and
payable by the Borrower) shall forthwith become due and payable by the
Guarantors for purposes of said Section 2.01.
2.06 Continuing Guarantee. The guarantee in this Section 2 is
a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
2.07 Rights of Contribution. The Guarantors hereby agree, as
between themselves, that if any Guarantor (an "Excess Funding Guarantor") shall
pay Guaranteed Obligations in excess of the Excess Funding Guarantor's Pro Rata
Share (as hereinafter defined) of such Guaranteed Obligations, the other
Guarantors shall, on demand (but subject to the next sentence hereof), pay to
the Excess Funding Guarantor an amount equal to their respective Pro Rata Shares
of such Excess Funding Guarantor's payment. The payment obligation of any
Guarantor to any Excess Funding Guarantor under this Section 2.07 shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Guarantor under the other provisions of this Section 2 and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations. For
- 9 -
the purposes hereof, "Pro Rata Share" shall mean, for any Guarantor, a
percentage equal to the percentage that such Guarantor's Net Assets as at
December 31, 1995 is of the aggregate Net Assets of all of the Guarantors as at
such date.
2.08 Limitation on Guarantee Obligations. In any action or
proceeding involving any State corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 2.01
hereof would otherwise, taking into account the provisions of Section 2.07
hereof, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under said Section 2.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Guarantor, any Lender, the Agent or any other Person, be
automatically limited and reduced to the highest amount which is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
2.09 Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Section 2 constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Agent, at its sole option, in the event of a dispute by such Guarantor in
the payment of any moneys due hereunder, shall have the right to bring
motion-action under New York CPLR Section 3213.
Section 3. Representations and Warranties. Each Guarantor
represents and warrants to the Lenders and the Agent that:
3.01 Existence. Such Guarantor: (a) is a corporation or a
limited partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization; (b) has all requisite
corporate or partnership power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted; and (c) is qualified
to do business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify (either individually or in the aggregate) would have a material adverse
effect on the financial condition, operations, business or prospects of such
Guarantor.
3.02 No Breach. None of the execution and delivery of this
Agreement, the consummation of the transactions herein
- 10 -
contemplated or compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent under, the charter or
by-laws or the partnership agreement (as the case may be) constituting such
Guarantor, of such Guarantor, or any applicable law or regulation, or any order,
writ, injunction or decree of any court or governmental authority or agency, or
any agreement or instrument to which such Guarantor is a party or by which it is
bound or to which it is subject, or constitute a default under any such
agreement or instrument, or result in the creation or imposition of any Lien
upon any of the revenues or assets of such Guarantor pursuant to the terms of
any such agreement or instrument.
3.03 Action. Such Guarantor has all necessary corporate or
partnership power and authority to execute, deliver and perform its obligations
under this Agreement; the execution, delivery and performance by such Guarantor
of this Agreement have been duly authorized by all necessary corporate or
partnership action on its part (including, without limitation, any required
shareholder approvals); and this Agreement has been duly and validly executed
and delivered by such Guarantor and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms.
3.04 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by such
Guarantor of this Agreement or for the validity or enforceability hereof, except
for filings and recordings in respect of the Liens created pursuant hereto.
3.05 Pledged Collateral.
------------------
(a) Such Guarantor is the sole beneficial owner of the
Collateral in which it purports to grant a security interest pursuant to Section
4 hereof and no Lien exists or will exist upon any such Collateral at any time
(and, with respect to the Stock Collateral, no right or option to acquire the
same exists in favor of any other Person), except for Liens permitted under
Section 6.03 hereof and except for the pledge and security interest in favor of
the Agent for the benefit of the Lenders created or provided for herein, which
pledge and security interest constitute a perfected pledge and security interest
in and to all of such Collateral (other than Intellectual Property registered or
otherwise located outside of the United States of America) subject to no equal
or prior Lien except for the Existing Liens;
(b) The Pledged Stock evidenced by the certificates identified
under the name of such Guarantor in Annex 1 hereto is,
- 11 -
and all other Pledged Stock in which such Guarantor shall hereafter grant a
security interest pursuant to Section 4 hereof will be, duly authorized, validly
existing, fully paid and non-assessable and none of such Pledged Stock is or
will be subject to any contractual restriction, or any restriction under the
charter or by-laws of the respective Issuer of such Pledged Stock, upon the
transfer of such Pledged Stock (except for any such restriction contained
herein).
(c) The Pledged Stock evidenced by the certificates identified
under the name of such Guarantor in Annex 1 hereto constitutes all of the issued
and outstanding shares of capital stock of any class of the Issuers beneficially
owned by such Guarantor on the date hereof (whether or not registered in the
name of such Guarantor), and said Annex 1 correctly identifies, as at the date
hereof, the respective Issuers of such Pledged Stock, the respective class and
par value of the shares comprising such Pledged Stock and the respective number
of shares (and registered owners thereof) evidenced by each such certificate.
(d) Annexes 2, 3 and 4 hereto, respectively, set forth under
the name of such Guarantor a complete and correct list of all Copyrights,
Patents and Trademarks owned by such Guarantor on the date hereof; except
pursuant to licenses and other user agreements entered into by such Guarantor in
the ordinary course of business, which are listed in Annex 5 hereto, such
Guarantor owns and possesses the right to use, and has done nothing to authorize
or enable any other Person to use, any Copyright, Patent, or Trademark listed in
said Annexes 2, 3 and 4, and all registrations listed in said Annexes 2, 3 and 4
are valid and in full force and effect; except as may be set forth in said Annex
5, the Guarantors own and possess the right to use all Copyrights, Patents, and
Trademarks;
(e) Annex 5 hereto sets forth a complete and correct list of
all licenses and other user agreements included in the Intellectual Property on
the date hereof;
(f) To such Guarantor's knowledge, (i) except as set forth in
Annex 5 hereto, there is no violation by others of any right of such Guarantor
with respect to any Copyright, Patent, or Trademark listed in Annexes 2, 3 and 4
hereto, respectively, under the name of such Guarantor and (ii) such Guarantor
is not infringing in any respect upon any Copyright, Patent, or Trademark of any
other Person; and no proceedings have been instituted or are pending against
such Guarantor or, to such Guarantor's knowledge, threatened, and no claim
against such Guarantor has been received by such Guarantor, alleging any such
violation, except as may be set forth in said Annex 5; and
- 12 -
(g) Such Guarantor does not own any Trademarks registered in
the United States of America to which the last sentence of the definition of
Trademark Collateral applies.
Section 4. Collateral. Subject to the Existing Liens, each
Guarantor hereby pledges and grants to the Agent, for the benefit of the Lenders
as hereinafter provided, a security interest in all of such Guarantor's right,
title and interest in the following property, whether now owned by such
Guarantor or hereafter acquired and whether now existing or hereafter coming
into existence (all being collectively referred to herein as "Collateral") as
collateral security for the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the Secured Obligations owing by such
Guarantor:
(a) the shares of stock of the Issuers evidenced by the
certificates identified in Annex 1 hereto under the name of such
Guarantor and all other shares of capital stock of whatever class of
the Issuers, now or hereafter owned by such Guarantor, in each case
together with the certificates evidencing the same (collectively, the
"Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of such Guarantor under
any provision prohibiting such action hereunder, in the event of any
consolidation or merger in which any Issuer is not the surviving
corporation, all shares of each class of the capital stock of the
successor corporation (unless such successor corporation is such
Guarantor itself) formed by or resulting from such consolidation or
merger;
(d) all accounts and general intangibles (each as defined in
the Uniform Commercial Code) of such Guarantor constituting any right
to the payment of money, including (but not limited to) all moneys due
and to become due to such Guarantor in respect of any loans or advances
or for Inventory or Equipment or other goods sold or leased or for
services rendered, all moneys due and to become due to such Guarantor
under any guarantee (including a letter of credit) of the purchase
price of Inventory or Equipment sold by such
- 13 -
Guarantor and all tax refunds (such accounts, general intangibles and
moneys due and to become due being herein called collectively
"Accounts");
(e) all instruments, chattel paper or letters of credit (each
as defined in the Uniform Commercial Code) of such Guarantor
evidencing, representing, arising from or existing in respect of,
relating to, securing or otherwise supporting the payment of, any of
the Accounts, including (but not limited to) promissory notes, drafts,
bills of exchange and trade acceptances (herein collectively called
"Instruments");
(f) all inventory (as defined in the Uniform Commercial Code)
of such Guarantor, all goods obtained by such Guarantor in exchange for
such inventory, and any products made or processed from such inventory
including all substances, if any, commingled therewith or added thereto
(herein collectively called "Inventory");
(g) all Intellectual Property and all other accounts or
general intangibles not constituting Intellectual Property or Accounts;
(h) all equipment (as defined in the Uniform Commercial Code)
of such Guarantor, including all Motor Vehicles (herein collectively
called "Equipment");
(i) each contract and other agreement of such Guarantor
relating to the sale or other disposition of Inventory or Equipment;
(j) all documents of title (as defined in the Uniform
Commercial Code) or other receipts of such Guarantor covering,
evidencing or representing Inventory or Equipment (herein collectively
called "Documents");
(k) all rights, claims and benefits of such Guarantor against
any Person arising out of, relating to or in connection with Inventory
or Equipment purchased by such Guarantor, including, without
limitation, any such rights, claims or benefits against any Person
storing or transporting such Inventory or Equipment;
(l) the balance from time to time in the Collateral Account;
and
(m) all other tangible and intangible personal property and
fixtures of such Guarantor, including, without limitation, all
proceeds, products, offspring, rents, profits, income, benefits,
accessions, substitutions and
- 14 -
replacements of and to any of the property of such Guarantor described
in clauses (a) through (l) above in this Section 4 (including, without
limitation, any proceeds of insurance thereon and all causes of action,
claims and warranties now or hereafter held by any Guarantor in respect
of any of the items listed above), and, to the extent related to any
property described in said clauses or such proceeds, products and
accessions, all books, correspondence, credit files, records, invoices
and other papers, including without limitation all tapes, cards,
computer runs and other papers and documents in the possession or under
the control of such Guarantor or any computer bureau or service company
from time to time acting for such Guarantor.
Section 5. Cash Proceeds of Collateral.
5.01 Collateral Account. There is hereby established with the
Agent a cash collateral account (the "Collateral Account") in the name and under
the control of the Agent into which there shall be deposited from time to time
the cash proceeds of any of the Collateral (including proceeds of insurance
thereon) required to be delivered to the Agent pursuant hereto and into which
the Guarantors may from time to time deposit any additional amounts which any of
them wishes to pledge to the Agent for the benefit of the Lenders as additional
collateral security hereunder. The balance from time to time in the Collateral
Account shall constitute part of the Collateral hereunder and shall not
constitute payment of the Secured Obligations until applied as hereinafter
provided. Except as expressly provided in the next sentence, the Agent shall
remit the collected balance outstanding to the credit of the Collateral Account
to or upon the order of the Guarantors as the Guarantors through the Borrower
shall from time to time instruct. However, at any time following the occurrence
and during the continuance of an Event of Default, the Agent may (and, if
instructed by the Lenders as specified in Section 11.03 of the Credit Agreement,
shall) in its (or their) discretion apply or cause to be applied (subject to
collection) the balance from time to time outstanding to the credit of the
Collateral Account to the payment of the Secured Obligations in the manner
specified in Section 7.09 hereof. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided herein.
5.02 Proceeds of Accounts. At any time after the occurrence
and during the continuance of an Event of Default, each Guarantor shall, upon
the request of the Agent, instruct all account debtors and other Persons
obligated in respect of all Accounts to make all payments in respect of the
Accounts either (a) directly to the Agent (by instructing that such payments be
remitted to a post office box which shall be in the name and
- 15 -
under the control of the Agent) or (b) to one or more other banks in the United
States of America (by instructing that such payments be remitted to a post
office box which shall be in the name and under the control of the Agent) under
arrangements, in form and substance satisfactory to the Agent pursuant to which
such Guarantor shall have irrevocably instructed such other bank (and such other
bank shall have agreed) to remit all proceeds of such payments directly to the
Agent for deposit into the Collateral Account. All payments made to the Agent,
as provided in the preceding sentence, shall be immediately deposited in the
Collateral Account. In addition to the foregoing, each Guarantor agrees that, at
any time after the occurrence and during the continuance of an Event of Default,
if the proceeds of any Collateral hereunder (including the payments made in
respect of Accounts) shall be received by it, such Guarantor shall, upon the
request of the Agent, as promptly as possible deposit such proceeds into the
Collateral Account. Until so deposited, all such proceeds shall be held in trust
by such Guarantor for and as the property of the Agent and shall not be
commingled with any other funds or property of such Guarantor.
5.03 Investment of Balance in Collateral Account. Amounts on
deposit in the Collateral Account shall be invested from time to time in such
Permitted Investments as the Guarantors through the Borrower (or, after the
occurrence and during the continuance of a Default, the Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Agent, provided that (a) at any time after the occurrence and during the
continuance of an Event of Default, the Agent may (and, if instructed by the
Lenders as specified in Section 11.03 of the Credit Agreement, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any such
Permitted Investments and to apply or cause to be applied the proceeds thereof
to the payment of the Secured Obligations in the manner specified in Section
7.09 hereof and (b) if requested by the Guarantors through the Borrower, such
Permitted Investments may be held in the name and under the control of one or
more of the Lenders (and in that connection each Lender, pursuant to Section
11.10 of the Credit Agreement) has agreed that such Permitted Investments shall
be held by such Lender as a collateral sub-agent for the Agent hereunder).
Section 6. Covenants. The Guarantors jointly and severally
agree that, until the payment and satisfaction in full of the Secured
Obligations and the expiration or termination of the Commitments and all Letter
of Credit Liabilities of the Lenders under the Credit Agreement:
- 16 -
6.01 Financial Statements. Each Guarantor shall deliver to
each of the Lenders:
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of such Guarantor, statements of income, retained earnings
and changes in financial position (or of cash flow, as the case may be)
of such Guarantor for such period and for the period from the beginning
of the respective fiscal year to the end of such period, and the
related balance sheets as at the end of such period, setting forth in
each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of such Guarantor or (in the
case of GDLP) of a senior financial officer of the general partner of
such Guarantor, which certificate shall state that said financial
statements present fairly, in all material respects, the financial
condition and results of operations, as the case may be, of such
Guarantor in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such period (subject
to normal year-end audit adjustments);
(b) as soon as available and in any event within 110 days
after the end of each fiscal year of such Guarantor, statements of
income, retained earnings and changes in financial position (or of cash
flow, as the case may be) of such Guarantor for such year and the
related balance sheets as at the end of such year, setting forth in
each case in comparative form the corresponding figures for the
preceding fiscal year, and accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that said financial statements
present fairly, in all material respects, the financial condition and
results of operations of such Guarantor in accordance with generally
accepted accounting principles, consistently applied, as at the end of,
and for, such fiscal year, and a certificate of such accountants
stating that, in making the examination necessary for their opinion,
they obtained no knowledge, except as specifically stated, of any
Default;
(c) promptly upon the mailing thereof to the shareholders of
such Guarantor or (in the case of GDLP) to the partner of such
Guarantor generally, copies of all financial statements, reports and
proxy statements so mailed; and
- 17 -
(d) from time to time such other information regarding the
business, affairs or financial condition of such Guarantor as any
Lender or the Agent may reasonably request.
6.02 Existence, Etc. Each Guarantor will:
(a) preserve and maintain its corporate or limited partnership
existence and all of its material rights, privileges and franchises;
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply therewith would (either individually or in the
aggregate) materially and adversely affect the financial condition,
operations, business or prospects taken as a whole of such Guarantor;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) permit representatives of any Lender or the Agent, during
normal business hours, to examine, copy and make extracts from its
books and records, to inspect its properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by any Lender or the Agent (as the case may be); and
(f) maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a
character usually maintained by corporations engaged in the same or
similar business similarly situated, against loss, damage or liability
of the kinds and in the amounts customarily maintained by such
corporations and maintain such other insurance as is usually carried by
such corporations.
6.03 Limitation on Liens. Each Guarantor will not create,
incur, assume or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
- 18 -
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of either Guarantor in accordance
with generally accepted accounting principles;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
and Liens securing judgments;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of any Guarantor;
(g) the Existing Liens; and
(h) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
6.04 Lines of Business. None of the Guarantors shall engage in
any line of business other than owning, operating and leasing real property and
improvements thereon, located:
(a) in the case of GDLP, at (i) 750 Ivory Avenue, Pittsburgh,
Pennsylvania 15214 and (ii) Hawkeye Drive Extended, Monroeville,
Pennsylvania;
- 19 -
(b) in the case of KIG, at (i) 2000-2008 W. 41st St.,
Baltimore, Maryland 21211 and (ii) 2010 W. 41st St., Baltimore, MD
21211; and
(c) in the case of Cunningham, at (i) 3500 Parkdale Avenue,
Baltimore, Maryland 21211, (ii) 3520 Parkdale Avenue, Baltimore,
Maryland 21211, (iii) 3521 Parkdale Avenue, Baltimore, Maryland 21211,
(iv) 3523 Parkdale Avenue, Baltimore Maryland 21211, (v) 3525 Parkdale
Avenue, Baltimore, Maryland 21211, (vi) 1200 North Rolling Road,
Baltimore, Maryland 21228 and (vii) 3900 Hooper Avenue, Baltimore,
Maryland 21211.
Section 7. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest pursuant to Section 4 hereof, the
Guarantors hereby jointly and severally agree with each Lender and the Agent as
follows:
7.01 Delivery and Other Perfection. Each Guarantor shall:
-----------------------------
(a) if any of the above-described shares, securities, moneys
or property required to be pledged by such Guarantor under clauses (a),
(b) and (c) of Section 4 hereof are received by such Guarantor,
forthwith either (i) transfer and deliver to the Agent such shares or
securities so received by such Guarantor (together with the
certificates for any such shares and securities duly endorsed in blank
or accompanied by undated stock powers duly executed in blank), all of
which thereafter shall be held by the Agent, pursuant to the terms of
this Agreement, as part of the Collateral or (ii) take such other
action as the Agent shall deem necessary or appropriate to duly record
the Lien created hereunder in such shares, securities, moneys or
property referred to in said clauses (a), (b) and (c);
(b) deliver and pledge to the Agent any and all Instruments,
endorsed and/or accompanied by such instruments of assignment and
transfer in such form and substance as the Agent may request; provided,
that so long as no Default shall have occurred and be continuing, such
Guarantor may retain for collection in the ordinary course any
Instruments received by such Guarantor in the ordinary course of
business and the Agent shall, promptly upon request of such Guarantor
through the Borrower, make appropriate arrangements for making any
Instrument pledged by such Guarantor available to such Guarantor for
purposes of presentation, collection or renewal (any such arrangement
to be effected, to the extent deemed appropriate by the Agent, against
trust receipt or like document);
- 20 -
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate the pledge and security interest granted
pursuant hereto or to enable the Agent to exercise and enforce its
rights hereunder with respect to such pledge and security interest,
including, without limitation, causing any or all of the Stock
Collateral to be transferred of record into the name of the Agent or
its nominee (and the Agent agrees that if any Stock Collateral is
transferred into its name or the name of its nominee, the Agent will
thereafter promptly give to the respective Guarantor copies of any
notices and communications received by it with respect to the Stock
Collateral pledged by such Guarantor hereunder), provided that notices
to account debtors in respect of any Accounts or Instruments shall be
subject to the provisions of clause (i) below;
(d) without limiting the obligations of such Guarantor under
Section 7.04(c) hereof, upon the acquisition after the date hereof by
such Guarantor of any Equipment covered by a certificate of title or
ownership, cause the Agent to be listed as the lienholder on such
certificate of title and within 120 days of the acquisition thereof
deliver evidence of the same to the Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Agent may reasonably require in order to reflect the
security interests granted by this Agreement;
(f) furnish to the Agent from time to time (but, unless a
Default shall have occurred and be continuing, no more frequently than
quarterly) statements and schedules further identifying and describing
the Copyright Collateral, the Patent Collateral, and the Trademark
Collateral, respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral, and the Trademark
Collateral, as the Agent may reasonably request, all in reasonable
detail;
(g) promptly upon request of the Agent, following receipt by
the Agent of any statements, schedules or reports pursuant to clause
(f) above, modify this Agreement by amending Annexes 2, 3 and/or 4
hereto, as the case may be, to include any Copyright, Patent, or
Trademark which becomes part of the Collateral under this Agreement;
- 21 -
(h) permit representatives of the Agent, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Agent to be present at such Guarantor's
place of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies of any
notices or communications received by such Guarantor with respect to
the Collateral, all in such manner as the Agent may require; and
(i) upon the occurrence and during the continuance of any
Default, upon request of the Agent, promptly notify (and such Guarantor
hereby authorizes the Agent so to notify) each account debtor in
respect of any Accounts or Instruments that such Collateral has been
assigned to the Agent hereunder, and that any payments due or to become
due in respect of such Collateral are to be made directly to the Agent.
7.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 6.03 hereof, without the prior written consent of the
Agent, no Guarantor shall file or suffer to be on file, or authorize or permit
to be filed or to be on file, in any jurisdiction, any financing statement or
like instrument with respect to the Collateral in which the Agent is not named
as the sole secured party for the benefit of the Lenders.
7.03 Preservation of Rights. The Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
7.04 Special Provisions Relating to Certain Collateral.
---------------------------------------------------
(a) Stock Collateral.
-----------------
(i) So long as no Event of Default shall have occurred and be
continuing, the Guarantors shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Stock Collateral for
all purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Note(s) or any other instrument or agreement referred to herein
or therein, provided that the Guarantors jointly and severally agree that they
will not vote the Stock Collateral in any manner that is inconsistent with the
terms of this Agreement, the Credit Agreement, the Note(s) or any such other
instrument or agreement; and the Agent shall execute and deliver to the
Guarantors or cause to be executed and delivered to the Guarantors all such
proxies, powers of attorney, dividend
- 22 -
and other orders, and all such instruments, without recourse, as the Guarantors
may reasonably request for the purpose of enabling the Guarantors to exercise
the rights and powers which they are entitled to exercise pursuant to this
Section 7.04(a)(i).
(ii) Unless and until an Event of Default has occurred and is
continuing, the Guarantors shall be entitled to receive and retain any dividends
on the Stock Collateral paid in cash out of earned surplus.
(iii) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Agent or any Lender
exercises any available right to declare any Secured Obligation due and payable
or seeks or pursues any other relief or remedy available to it under applicable
law or under this Agreement, the Credit Agreement, the Note(s) or any other
agreement relating to such Secured Obligation, all dividends and other
distributions on the Stock Collateral shall be paid directly to the Agent and
retained by it in the Collateral Account as part of the Stock Collateral,
subject to the terms of this Agreement, and, if the Agent shall so request in
writing, the Guarantors jointly and severally agree to execute and deliver to
the Agent appropriate additional dividend, distribution and other orders and
documents to that end, provided that if such Event of Default is cured, any such
dividend or distribution theretofore paid to the Agent shall, upon request of
the Guarantors (except to the extent theretofore applied to the Secured
Obligations), be returned by the Agent to the Guarantors.
(b) Intellectual Property.
-------------------------
(i) For the purpose of enabling the Agent to exercise rights
and remedies under Section 7.05 hereof at such time as the Agent shall be
lawfully entitled to exercise such rights and remedies, and for no other
purpose, each Guarantor hereby grants to the Agent, to the extent assignable, an
irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to such Guarantor) to use, assign, license or sublicense any
of the Intellectual Property now owned or hereafter acquired by such Guarantor,
wherever the same may be located, including in such license reasonable access to
all media in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof;
(ii) Notwithstanding anything contained herein to the contrary,
dispose of their property, so long as no Event of Default shall have occurred
and be continuing, the Guarantors will be permitted to exploit, use, enjoy,
protect, license, sublicense, assign, sell, dispose of or take other actions
with
- 23 -
respect to the Intellectual Property in the ordinary course of the business of
the Guarantors. In furtherance of the foregoing, unless an Event of Default
shall have occurred and be continuing the Agent shall from time to time, upon
the request of the Guarantors through the Borrower, execute and deliver any
instruments, certificates or other documents, in the form so requested, which
the Guarantors through the Borrower shall have certified are appropriate (in
their judgment) to allow them to take any action permitted above (including
relinquishment of the license provided pursuant to clause (i) immediately above
as to any specific Intellectual Property). Further, upon the payment in full of
all of the Secured Obligations, the cancellation or termination of the
Commitments and Letter of Credit Liabilities and the termination of all Interest
Rate Protection Agreements constituting Other Indebtedness or earlier expiration
of this Agreement or release of the Collateral, the Agent shall grant back to
the Guarantors the license granted pursuant to clause (i) immediately above. The
exercise of rights and remedies under Section 7.05 hereof by the Agent shall not
terminate the rights of the holders of any licenses or sublicenses theretofore
granted by the Guarantors in accordance with the first sentence of this clause
(ii).
(c) Motor Vehicles.
---------------
(i) At any time after the occurrence and during the
continuance of an Event of Default, each Guarantor shall, upon the request of
the Agent, deliver to the Agent originals of the certificates of title or
ownership for the Motor Vehicles owned by it with the Agent listed as lienholder
and take such other action as the Agent shall deem appropriate to perfect the
security interest created hereunder in such Motor Vehicles.
(ii) Upon the acquisition after the date hereof by any Guarantor of
any Motor Vehicle, such Guarantor shall deliver to the Agent, at any time after
the occurrence and during the continuance of an Event of Default and upon the
request of the Agent, originals of the certificates of title or ownership for
such Motor Vehicles, together with the manufacturer's statement of origin with
the Agent listed as lienholder; provided, however, if the Motor Vehicle to be
acquired is subject to a purchase money security interest, the Agent shall be
listed as a junior lienholder to the Person holding such purchase money security
interest.
(iii) Without limiting Section 7.10 hereof, each Guarantor hereby
appoints the Agent as its attorney-in-fact, effective the date hereof and
terminating upon the termination of this Agreement, for the purpose of (x)
executing on behalf of such Guarantor title or ownership applications for filing
with appropriate state agencies to enable Motor Vehicles now owned or
- 24 -
hereafter acquired by such Guarantor to be retitled and the Agent listed as
lienholder thereon, (y) filing such applications with such state agencies and
(z) executing such other documents and instruments on behalf of, and taking such
other action in the name of, such Guarantor as the Agent may deem necessary or
advisable to accomplish the purposes hereof (including, without limitation, the
purpose of creating in favor of the Agent a perfected lien on the Motor Vehicles
and exercising the rights and remedies of the Agent under Section 7.05 hereof).
This appointment as attorney-in-fact is irrevocable and coupled with an
interest.
(iv) Any certificates of title or ownership delivered pursuant to
the terms hereof shall be accompanied by odometer statements for each Motor
Vehicle covered thereby.
7.05 Events of Default, etc. During the period during which an
Event of Default shall have occurred and be continuing:
(a) each Guarantor shall, at the request of the Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Agent and such Guarantor, designated in its
request;
(b) the Agent may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may extend
the time of payment, arrange for payment in installments, or otherwise
modify the terms of, any of the Collateral;
(c) the Agent shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral
as if the Agent were the sole and absolute owner thereof (and each
Guarantor agrees to take all such action as may be appropriate to give
effect to such right);
(d) the Agent in its discretion may, in its name or in the
name of the Guarantors or otherwise, demand, sue for, collect or
receive any money or property at any time payable or receivable on
account of or in exchange for any of the Collateral, but shall be under
no obligation to do so; and
- 25 -
(e) the Agent may, upon ten Business Days' prior written
notice to the Guarantors of the time and place, with respect to the
Collateral or any part thereof which shall then be or shall thereafter
come into the possession, custody or control of the Agent, the Lenders
or any of their respective agents, sell, lease, assign or otherwise
dispose of all or any portion of such Collateral, at such place or
places as the Agent deems best, and for cash or on credit or for future
delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except
such notice as is required above or by applicable statute and cannot be
waived) and the Agent or any Lender or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale), and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including
any right or equity of redemption (statutory or otherwise), of the
Guarantors, any such demand, notice and right or equity being hereby
expressly waived and released. In the event of any sale, assignment, or
other disposition of any of the Trademark Collateral, the goodwill
connected with and symbolized by the Trademark Collateral subject to
such disposition shall be included, and the Guarantors shall supply to
the Agent or its designee, for inclusion in such sale, assignment or
other disposition, all Intellectual Property relating to such Trademark
Collateral. The Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so
adjourned.
The proceeds of each collection, sale or other disposition under this Section
7.05, including by virtue of the exercise of the license granted to the Agent in
Section 7.04(b)(i) hereof, shall be applied in accordance with Section 7.09
hereof.
The Guarantors recognize that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Agent may be compelled, with respect to any sale of
all or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Guarantors acknowledge that any such private sales may be at prices and on terms
less favorable to the Agent than those obtainable through a public sale without
such restrictions, and, notwithstanding such circumstances, agree that any such
private
- 26 -
sale shall be deemed to have been made in a commercially reasonable manner and
that the Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Collateral for the period of time necessary
to permit the respective Issuer or issuer thereof to register it for public
sale.
7.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 7.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Guarantors shall remain liable for any
deficiency.
7.07 Removals, etc. Without at least 30 days' prior written
notice to the Agent, no Guarantor shall (a) maintain any of its books or records
with respect to the Collateral at any office or maintain its chief executive
office or its principal place of business at any place, or permit any Inventory
or Equipment to be located anywhere other than at the address indicated beneath
the signature of such Guarantor to this Agreement or at one of the locations
identified in Annex 6 hereto under its name or in transit from one of such
locations to another or (b) change its corporate or partnership name, or the
name under which it does business, from the name shown on the signature pages
hereto.
7.08 Private Sale. The Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 7.05 hereof conducted in a commercially
reasonable manner. Each Guarantor hereby waives any claims against the Agent or
any Lender arising by reason of the fact that the price at which the Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale or was less than the aggregate amount of the
Secured Obligations, even if the Agent accepts the first offer received and does
not offer the Collateral to more than one offeree.
7.09 Application of Proceeds. Except as otherwise herein
expressly provided and except as provided below in this Section 7.09, the
proceeds of any collection, sale or other realization of all or any part of the
Collateral pursuant hereto, and any other cash at the time held by the Agent
under Section 4 hereof or this Section 7, shall be applied by the Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Agent and the fees and expenses
of its agents and counsel, and all expenses
- 27 -
incurred and advances made by the Agent in connection
therewith;
Next, to the payment in full of the Secured Obligations,
equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise
agree; and
Finally, to the payment to the respective Guarantor, or its
successors or assigns, or as a court of competent jurisdiction may
direct, of any surplus then remaining.
As used in this Section 7, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Guarantors or any issuer of or obligor
on any of the Collateral.
7.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of any Event
of Default the Agent is hereby appointed the attorney-in-fact of each Guarantor
for the purpose of carrying out the provisions of this Section 7 and taking any
action and executing any instruments which the Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Agent shall be entitled under
this Section 7 to make collections in respect of the Collateral, the Agent shall
have the right and power to receive, endorse and collect all checks made payable
to the order of any Guarantor representing any dividend, payment, or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
7.11 Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, each Guarantor shall (a) file such financing
statements and other documents in such offices as the Agent may request to
perfect the security interests granted by Section 4 of this Agreement, (b) cause
the Agent (to the extent requested by any Lender) to be listed as the lienholder
on all certificates of title or ownership relating to Motor Vehicles owned by
such Guarantor (c) deliver to the Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in blank.
7.12 Termination. When all Secured Obligations shall have been
paid in full, the Commitments of the Lenders under the Credit Agreement, all
Letter of Credit Liabilities and the
- 28 -
Interest Rate Protection Agreements constituting Other Indebtedness shall have
expired or been terminated, this Agreement shall terminate, and the Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect thereof, to or on the order of the
respective Guarantors and to be released and canceled all licenses and rights
referred to in Section 7.04(b)(i) hereof. The Agent shall also execute and
deliver to the respective Guarantors upon such termination such Uniform
Commercial Code termination statements, certificates for terminating the Liens
on the Motor Vehicles and such other documentation as shall be reasonably
requested by the respective Guarantors to effect the termination and release of
the Liens on the Collateral.
7.13 Further Assurances. Each Guarantor agrees that, from time
to time upon the written request of the Agent, such Guarantor will execute and
deliver such further documents and do such other acts and things as the Agent
may reasonably request in order fully to effect the purposes of this Agreement.
7.14 Release of Motor Vehicles. So long as no Default shall
have occurred and be continuing, upon the request of any Guarantor, the Agent
shall execute and deliver to such Guarantor such instruments as such Guarantor
shall reasonably request to remove the notation of the Agent as lienholder on
any certificate of title for any Motor Vehicle; provided that any such
instruments shall be delivered, and the release effective only upon receipt by
the Agent of a certificate from such Guarantor stating that the Motor Vehicle
the lien on which is to be released is to be sold or has suffered a casualty
loss (with title thereto passing to the casualty insurance company therefor in
settlement of the claim for such loss).
Section 8. Miscellaneous.
-------------
8.01 No Waiver. No failure on the part of the Agent or any
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
8.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified
- 29 -
beneath its name on the signature pages hereof (or, in the case of the Agent, on
the signature pages of the Credit Agreement) or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
8.03 Expenses. The Guarantors jointly and severally agree to
reimburse each of the Lenders and the Agent for all reasonable costs and
expenses of the Lenders and the Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (a) any
Default and any enforcement or collection proceeding resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (i) performance by the Agent of any obligations of the
Guarantors in respect of the Collateral that the Guarantors have failed or
refused to perform, (ii) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Agent in respect thereof, by litigation or otherwise,
including expenses of insurance, (iii) judicial or regulatory proceedings and
(iv) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (b) the enforcement of this Section 6.03, and all such costs and expenses
shall be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3 hereof.
8.04 Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
each Guarantor and the Agent (with the consent of the Lenders as specified in
Section 11.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon the Agent and each Lender, each holder of any of the Secured
Obligations and each Guarantor.
8.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of each
Guarantor, the Agent, the Lenders and each holder of any of the Secured
Obligations (provided, however, that no Guarantor shall assign or transfer its
rights hereunder without the prior written consent of the Agent).
8.06 Captions. The captions and section headings appearing
herein are included solely for convenience of reference
- 30 -
and are not intended to affect the interpretation of any provision of this
Agreement.
8.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
8.08 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. Each Guarantor hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Guarantor irrevocably waives, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to
the laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
8.09 Waiver of Jury Trial. EACH OF THE GUARANTORS, THE AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
8.10 Agents and Attorneys-in-Fact. The Agent may employ agents
and attorneys-in-fact in connection herewith and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it in good faith.
8.11 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
- 31 -
IN WITNESS WHEREOF, the parties hereto have caused this
Affiliate Guarantee and Security Agreement to be duly executed as of the day and
year first above written.
CUNNINGHAM COMMUNICATIONS, INC.
By
----------------------------
Name:
Title:
Address for Notices:
Cunningham Communications, Inc.
2000 West 41st Street
Baltimore, Maryland 21211
Telecopy: (410) 467-5043
Attention: David Smith
KEYSER INVESTMENT GROUP, INC.
By
----------------------------
Name:
Title:
Address for Notices:
Keyser Investment Group, Inc.
2000 West 41st Street
Baltimore, Maryland 21211
Telecopy: (410) 467-5043
Attention: David Smith
- 32 -
GERSTELL DEVELOPMENT LIMITED
PARTNERSHIP
By GERSTELL DEVELOPMENT CORPORATION
its General Partner
By
------------------------------
Name:
Title:
Address for Notices:
Gerstell Development Limited
Partnership
2000 West 41st Street
Baltimore, Maryland 21211
Telecopy: (410) 467-5043
Attention: David Smith
- 33 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
----------------------------
Name:
Title:
EXHIBIT E
[Form of GDC Security Agreement]
SECOND AMENDED AND RESTATED GDC SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT dated as of May
31, 1996 between:
GERSTELL DEVELOPMENT CORPORATION, a corporation duly organized
and validly existing under the laws of Maryland ("GDC"); and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as agent for
the lenders party to the "Credit Agreement" defined below (in such
capacity, together with its successors in such capacity, the "Agent").
WHEREAS, Sinclair Broadcast Group, Inc. (the "Borrower"),
certain subsidiaries of the Borrower, certain lenders (the "Existing Lenders")
and the Agent are parties to an Amended and Restated Credit Agreement dated as
of May 24, 1994 (as heretofore amended, supplemented and otherwise modified and
in effect on the date hereof before giving effect to the amendment and
restatement thereof contemplated by the Credit Agreement referred to below, the
"Existing Credit Agreement"), and in connection therewith GDC and the Agent have
executed and delivered an Amended and Restated Security Agreement dated as of
May 24, 1994 (as heretofore amended, supplemented and otherwise modified and in
effect on the date hereof before giving effect to the amendment and restatement
thereof contemplated hereby, the "Existing GDC Security Agreement") pursuant to
which GDC granted to the Agent, for the benefit of the Existing Lenders, a
security interest in the Collateral referred to therein.
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Borrower, certain subsidiaries of the Borrower and certain
lenders (collectively, the "Lenders") and the Agent are entering into a Second
Amended and Restated Credit Agreement dated as of May 31, 1996 (as modified and
supplemented and in effect from time to time (including, without limitation, to
increase the amount of credit to be extended thereunder), the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for the
extension and renewal of the Borrower's indebtedness under the Existing Credit
Agreement and for additional extensions of credit to the Borrower. In addition,
the Borrower may now or hereafter from time to time be obligated to various of
the Lenders in respect of certain Interest Rate Protection Agreements (as
defined in the Credit Agreement) (such obligations being herein referred to as
the "Other Indebtedness").
GDC Security Agreement
-2-
To induce said Lenders to amend and restate the Existing
Credit Agreement and to extend credit thereunder and to extend credit to the
Borrower which would constitute Other Indebtedness, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, GDC has agreed to amend and restate the Existing GDC Security
Agreement in its entirety. Accordingly, the parties hereto hereby agree that the
Existing GDC Security Agreement shall be amended and restated to read as
follows:
Section 1. Definitions. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein:
"Collateral" shall have the meaning ascribed thereto in
Section 3.01 hereof.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such Property. For purposes of this Agreement, GDC shall be
deemed to own subject to a Lien any Property which it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement (other than an operating lease) relating to such Property.
"Pledged Interests" shall have the meaning ascribed thereto in
Section 3.01(a) hereof.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Secured Obligations" shall mean, collectively, (a) the prompt
payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the principal of and interest on the Loans made by the
Lenders to, and the Note(s) held by each Lender of, the Borrower, all
Reimbursement Obligations and interest thereon and all other amounts
from time to time owing to the Lenders or the Agent by the Credit
Parties under the Basic Documents and all Other Indebtedness and
interest thereon, in each case strictly in accordance with the terms
thereof and (b) all obligations of GDC to the Lenders and the Agent
hereunder; provided that in any action or proceeding involving any
state corporate law, or any state or Federal bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors
generally, if the obligations of GDC hereunder would otherwise be held
or determined to be void, invalid or
GDC Security Agreement
-3-
unenforceable, or subordinated to the claims of any other creditors, on
account of the amount of its liability hereunder, then, notwithstanding
any other provision hereof to the contrary, the amount of such
liability shall, without any further action by GDC, any Lender, the
Agent or any other Person, be automatically limited and reduced to the
highest amount which is valid and enforceable and not subordinated to
the claims of other creditors as determined in such action or
proceeding.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
Section 2. Representations and Warranties. GDC represents and
warrants to the Lenders and the Agent that:
2.01 Existence. GDC: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite power, and has all material governmental
licenses, authorizations, consents and approvals, necessary to own its assets
and carry on its business as now being or as proposed to be conducted; and (c)
is qualified to do business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and where failure so
to qualify would (either individually or in the aggregate) have a material
adverse effect on the financial condition, operations, business or prospects of
GDC.
2.02 No Breach. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of GDC, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which GDC is a party or by which it is bound or to which it is subject, or
constitute a default under any such agreement or instrument, or result in the
creation or imposition of any Lien upon any of the revenues or assets of GDC
pursuant to the terms of any such agreement or instrument.
2.03 Action. GDC has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
the execution, delivery and performance by GDC of this Agreement have been duly
authorized by all necessary corporate action (including, without limitation, any
required shareholder approvals); and this Agreement has been duly and validly
executed and delivered by GDC and constitutes its legal,
GDC Security Agreement
-4-
valid and binding obligation, enforceable in accordance with its terms.
2.04 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by GDC of
this Agreement or for the validity or enforceability hereof, except for filings
and recordings in respect of the Liens created pursuant hereto.
2.05 Pledged Collateral.
------------------
(a) GDC is the sole beneficial owner of the Collateral in
which it purports to grant a security interest pursuant to Section 3.01 hereof
and no Lien exists or will exist upon any such Collateral at any time (and no
right or option to acquire the same exists in favor of any other Person), except
for the pledge and security interest in favor of the Agent for the benefit of
the Lenders created or provided for herein, which pledge and security interest
constitutes a first priority perfected pledge and security interest in and to
all of such Collateral;
(b) None of the Collateral in which GDC grants a security
interest pursuant to Section 3.01 hereof is or will be subject to any
contractual restriction, or any restriction under the partnership agreement
constituting GDLP, upon the transfer of such Collateral (except for any such
restriction contained herein).
(c) The percentage of the total ownership interests in GDLP
owned by GDC is 2.00% and the nature of such ownership interests is that of a
general partner.
Section 3. Collateral.
----------
3.01 Collateral. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, GDC hereby pledges and grants to the Agent, for the
benefit of the Lenders as hereinafter provided, a security interest in all of
GDC's right, title and interest in the following property, whether now owned by
GDC or hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "Collateral"):
(a) the partnership interests in GDLP (the "Pledged
Interests");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Interests, or
GDC Security Agreement
-5-
representing a distribution or return of capital upon or in respect of
the Pledged Interests, or resulting from a split-up, revision,
reclassification or other like change of the Pledged Interests or
otherwise received in exchange therefor, and any subscription warrants,
rights or options issued to the holders of, or otherwise in respect of,
the Pledged Interests; and
(c) all proceeds of and to any of the property of GDC
described in clauses (a) and (b) above in this Section 3.01 and, to the
extent related to any property described in said clauses or such
proceeds, all books, correspondence, credit files, records, invoices
and other papers.
3.02 Obligations Unconditional. The obligations of GDC under
Section 3.01 hereof are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the Credit Agreement, the
Notes or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Secured Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense, it being the intent of
this Section 3.02 that the obligations of GDC hereunder shall be absolute and
unconditional under any and all circumstances. Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not affect the liability of GDC hereunder which shall remain
absolute and unconditional as described above:
(a) at any time or from time to time, without notice to GDC,
the time for any performance of or compliance with any of the Secured
Obligations shall be extended, or such performance or compliance shall
be waived;
(b) any of the acts mentioned in any of the provisions of the
Credit Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(c) the maturity of any of the Secured Obligations shall be
accelerated, or any of the Secured Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Secured Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
GDC Security Agreement
-6-
(d) any lien or security interest granted to, or in favor of,
the Agent or any Lender or Lenders as security for any of the Secured
Obligations shall fail to be perfected;
(e) any of the Secured Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Credit Party) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any Credit
Party);
(f) the Borrower shall be insolvent on the date hereof or
shall become insolvent on the date that any Loan is made; or
(g) the execution and delivery of a Tranche C Term Loan
Activation Notice providing for Tranche C Term Loan Commitments in any
amount.
GDC hereby expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement (including, without limitation,
marshalling) that the Agent or any Lender exhaust any right, power or remedy or
proceed against the Borrower under the Credit Agreement or the Notes or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the Secured
Obligations.
3.03 Subrogation. GDC hereby waives all rights of subrogation
or contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under the Bankruptcy Code) or
otherwise by reason of any payment by it pursuant to the provisions of this
Section 3.
Section 4. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest pursuant to Section 3.01 hereof, GDC
hereby agrees with each Lender and the Agent as follows:
4.01 Delivery and Other Perfection. GDC shall:
(a) if any of the above-described shares, securities, moneys
or property required to be pledged by GDC under clauses (a) and (b) of
Section 3.01 hereof are received by GDC, forthwith either (i) transfer
and deliver to the Agent such shares or securities so received by GDC
(together with the certificates for any such shares and securities duly
endorsed in blank or accompanied by undated stock powers duly executed
in blank), all of which thereafter shall be held by the Agent, pursuant
to the terms of this Agreement, as part of the Collateral or (ii) take
such other action as the Agent shall deem necessary or appropriate to
duly record
GDC Security Agreement
-7-
the Lien created hereunder in such shares, securities, moneys or
property referred to in said clauses (a) and (b);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Agent) to create,
preserve, perfect or validate the pledge and security interest granted
pursuant hereto or to enable the Agent to exercise and enforce its
rights hereunder with respect to such pledge and security interest,
including, without limitation, causing any or all of the Collateral to
be transferred of record into the name of the Agent or its nominee (and
the Agent agrees that if any Collateral is transferred into its name or
the name of its nominee, the Agent will thereafter promptly give to GDC
copies of any notices and communications received by it with respect to
the Collateral pledged by GDC hereunder); and
(c) permit representatives of the Agent, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Agent to be present at GDC's place of
business to receive copies of all communications and remittances
relating to the Collateral, and forward copies of any notices or
communications received by GDC with respect to the Collateral, all in
such manner as the Agent may require.
4.02 Other Financing Statements and Liens. Without the prior
written consent of the Agent, GDC shall not file or suffer to be on file, or
authorize or permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the Collateral in which
the Agent is not named as the sole secured party for the benefit of the Lenders.
4.03 Preservation of Rights. The Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
4.04 Special Provisions Relating to Certain Collateral.
(a) GDC will cause the Pledged Interests to constitute at all
times 100% of the partnership interests in GDLP then outstanding, other than
partnership interests in GDLP held by the Smith Brothers.
(b) So long as no Event of Default shall have occurred and be
continuing, GDC shall have the right to exercise all voting, consensual and
other powers of ownership pertaining to the Collateral for all purposes not
inconsistent with the terms
GDC Security Agreement
-8-
of this Agreement, the Credit Agreement, the Note(s) or any other instrument or
agreement referred to herein or therein, provided that GDC agrees that it will
not vote the Collateral in any manner that is inconsistent with the terms of
this Agreement, the Credit Agreement, the Note(s) or any such other instrument
or agreement; and the Agent shall execute and deliver to GDC or cause to be
executed and delivered to GDC all such proxies, powers of attorney, dividend and
other orders, and all such instruments, without recourse, as GDC may reasonably
request for the purpose of enabling GDC to exercise the rights and powers which
they are entitled to exercise pursuant to this Section 4.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, GDC shall be entitled to receive and retain any dividends or
distributions on the Collateral paid in cash out of earned surplus or profits.
(d) If any Event of Default shall have occurred, then so long
as such Event of Default shall continue, and whether or not the Agent or any
Lender exercises any available right to declare any Secured Obligation due and
payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Note(s) or any
other agreement relating to such Secured Obligation, all dividends and other
distributions on the Collateral shall be paid directly to the Agent and retained
by it as part of the Collateral, subject to the terms of this Agreement, and, if
the Agent shall so request in writing, GDC agrees to execute and deliver to the
Agent appropriate additional dividend, distribution and other orders and
documents to that end, provided that if such Event of Default is cured, any such
dividend or distribution theretofore paid to the Agent shall, upon request of
GDC (except to the extent theretofore applied to the Secured Obligations), be
returned by the Agent to GDC.
4.05 Events of Default, etc. During the period during which an
Event of Default shall have occurred and be continuing:
(a) the Agent shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral
as if the Agent were the sole and absolute owner thereof (and GDC
agrees to take
GDC Security Agreement
-9-
all such action as may be appropriate to give effect to such right);
(b) the Agent in its discretion may, in its name or in the
name of GDC or otherwise, demand, sue for, collect or receive any money
or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to
do so; and
(c) the Agent may, upon ten Business Days' prior written
notice to GDC of the time and place, with respect to the Collateral or
any part thereof which shall then be or shall thereafter come into the
possession, custody or control of the Agent, the Lenders or any of
their respective agents, sell, lease, assign or otherwise dispose of
all or any portion of such Collateral, at such place or places as the
Agent deems best, and for cash or on credit or for future delivery
(without thereby assuming any credit risk), at public or private sale,
without demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived) and the
Agent or any Lender or anyone else may be the purchaser, lessee,
assignee or recipient of any or all of the Collateral so disposed of at
any public sale (or, to the extent permitted by law, at any private
sale), and thereafter hold the same absolutely, free from any claim or
right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise), of GDC, any such demand, notice and right or
equity being hereby expressly waived and released. The Agent may,
without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any
time or place to which the same may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09 hereof.
GDC recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Agent may be compelled, with respect to any sale of all or
any part of the Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. GDC acknowledges that
any such private sales may be at prices and on terms less favorable to the Agent
than those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agree that any such private sale shall be
deemed
GDC Security Agreement
-10-
to have been made in a commercially reasonable manner and that the Agent shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Collateral for the period of time necessary to permit the respective
issuer thereof to register it for public sale.
4.06 No Deficiency. The Agent hereby agrees and acknowledges
that if the proceeds of sale, collection or other realization of or upon the
Collateral pursuant to Section 4.05 hereof are insufficient to cover the costs
and expenses of such realization and the payment in full of the Secured
Obligations, GDC shall not remain liable for any deficiency.
4.07 Removals, etc. Without at least 30 days' prior written
notice to the Agent, GDC shall not (a) maintain any of its books or records with
respect to the Collateral at any office or maintain its chief executive office
or its principal place of business at any place or (b) change its corporate
name, or the name under which it does business, from the name shown on the
signature pages hereto.
4.08 Private Sale. The Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 4.05 hereof conducted in a commercially
reasonable manner. GDC hereby waives any claims against the Agent or any Lender
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the Secured
Obligations, even if the Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
4.09 Application of Proceeds. Except as otherwise herein
expressly provided and except as provided below in this Section 4.09, the
proceeds of any collection, sale or other realization of all or any part of the
Collateral pursuant hereto, and any other cash at the time held by the Agent
under this Section 4, shall be applied by the Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Agent and the fees and expenses
of its agents and counsel, and all expenses incurred and advances made
by the Agent in connection therewith;
Next, to the payment in full of the Secured Obligations,
equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise
agree; and
GDC Security Agreement
-11-
Finally, to the payment to GDC, or its successors or assigns,
or as a court of competent jurisdiction may direct, of any surplus then
remaining.
As used in this Section 4, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of GDC or any issuer of or obligor on any of
the Collateral.
4.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of any Event
of Default the Agent is hereby appointed the attorney-in-fact of GDC for the
purpose of carrying out the provisions of this Section 4 and taking any action
and executing any instruments which the Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, so long as the Agent shall be entitled under this Section 4 to make
collections in respect of the Collateral, the Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
GDC representing any dividend, payment, or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the same.
4.11 Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, GDC shall file such financing statements and
other documents in such offices as the Agent may request to perfect the security
interests granted by Section 3.01 of this Agreement.
4.12 Termination. When all Secured Obligations shall have been
paid in full, the Commitments of the Lenders under the Credit Agreement, all
Letter of Credit Liabilities and the Interest Rate Protection Agreements
constituting Other Indebtedness shall have expired or been terminated, this
Agreement shall terminate, and the Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of GDC. The Agent shall also execute and
deliver to GDC upon such termination such Uniform Commercial Code termination
statements and such other documentation as shall be reasonably requested by GDC
to effect the termination and release of the Liens on the Collateral.
4.13 Further Assurances. GDC agrees that, from time to time
upon the written request of the Agent, GDC will execute
GDC Security Agreement
-12-
and deliver such further documents and do such other acts and things as the
Agent may reasonably request in order fully to effect the purposes of this
Agreement.
Section 5. Miscellaneous.
-------------
5.01 No Waiver. No failure on the part of the Agent or any
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
5.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its name on the
signature pages hereof (or, in the case of the Agent, on the signature pages of
the Credit Agreement) or, as to either party, at such other address as shall be
designated by such party in a notice to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
5.03 Expenses. GDC agrees to reimburse each of the Lenders and
the Agent for all reasonable costs and expenses of the Lenders and the Agent
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (a) any Default and any enforcement or collection
proceeding resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (i) performance by the Agent of any
obligations of GDC in respect of the Collateral that GDC has failed or refused
to perform, (ii) bankruptcy, insolvency, receivership, foreclosure, winding up
or liquidation proceedings, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Agent in respect thereof, by litigation or otherwise,
including expenses of insurance, (iii) judicial or regulatory proceedings and
(iv) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (b) the enforcement of this Section 6.03, and all such costs and expenses
shall be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3.01 hereof.
GDC Security Agreement
-13-
5.04 Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by GDC
and the Agent (with the consent of the Lenders as specified in Section 11.09 of
the Credit Agreement). Any such amendment or waiver shall be binding upon the
Agent and each Lender, each holder of any of the Secured Obligations and GDC.
5.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of GDC,
the Agent, the Lenders and each holder of any of the Secured Obligations
(provided, however, that GDC shall not assign or transfer its rights hereunder
without the prior written consent of the Agent).
5.06 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
5.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.08 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. GDC hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
state court sitting in New York City for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. GDC irrevocably waives, to the fullest extent permitted by applicable
law, any objection that it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
5.09 Waiver of Jury Trial. EACH OF GDC, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.10 Agents and Attorneys-in-Fact. The Agent may employ agents
and attorneys-in-fact in connection herewith and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it in good faith.
GDC Security Agreement
-14-
5.11 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
GDC Security Agreement
-15-
IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be duly executed as of the day and year first above
written.
GERSTELL DEVELOPMENT CORPORATION
By
----------------------------
Name:
Title:
Address for Notices:
Gerstell Development Corporation
2000 West 41st Street
Baltimore, Maryland 21211
Telephone No.: (410) 467-5005
Telecopy No.: (410) 467-5043
Attention: David Smith
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
-----------------------------
Name:
Title:
GDC Security Agreement
EXHIBIT F
[Form of Founders Subordination Agreement]
SECOND AMENDED AND RESTATED FOUNDERS SUBORDINATION AGREEMENT
SECOND AMENDED AND RESTATED FOUNDERS SUBORDINATION AGREEMENT
dated as of May 31, 1996 between CAROLYN C. SMITH, an individual currently
residing at 1343 Ivy Hill Road, Cockeysville, Maryland 21030 (the "Subordinated
Creditor") and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as agent for the
lenders party to the "Credit Agreement" defined to below (in such capacity,
together with its successors in such capacity, the "Agent").
WHEREAS, Sinclair Broadcast Group, Inc. (the "Borrower"),
certain subsidiaries of the Borrower, certain lenders and the Agent are parties
to an Amended and Restated Credit Agreement dated as of May 24, 1994 (as
heretofore amended, supplemented and otherwise modified and in effect on the
date hereof before giving effect to the amendment and restatement thereof
contemplated by the Credit Agreement (as defined below), the "Existing Credit
Agreement"), and in connection therewith the Subordinated Creditor,
individually, and as Co-Personal Representative for the Estate of Julian S.
Smith, Frederick G. Smith, as Co-Personal Representative for the Estate of
Julian S. Smith (collectively, the "Existing Subordinated Creditors"), and the
Agent have executed and delivered an Amended and Restated Founders Subordination
Agreement dated as of May 24, 1994 (as heretofore amended, supplemented and
otherwise modified and in effect on the date hereof before giving effect to the
amendment and restatement contemplated hereby, the "Existing Subordination
Agreement") pursuant to which the Existing Subordinated Creditors agreed to
subordinate certain claims to the prior payment of the Senior Obligations
referred to therein.
WHEREAS, the Estate of Julian S. Smith has been closed and
the promissory note referred to in the clause (b) of the definition of "Junior
Notes" in Section 1 of this Agreement has been assigned to Carolyn C. Smith.
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Borrower, certain subsidiaries of the Borrower and certain
lenders (collectively, the "Lenders") and the Agent are entering into a Second
Amended and Restated Credit Agreement dated as of May 31, 1996 (as modified and
supplemented and in effect from time to time (including without limitation, to
increase the amount of credit to be extended thereunder), the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for the
extension and renewal of the Borrower's indebtedness under the Existing Credit
Agreement and for additional extensions of credit to the Borrower. In
Founders Subordination Agreement
- 2 -
addition, the Borrower may now or hereafter from time to time be obligated to
various of the Lenders in respect of certain Interest Rate Protection Agreements
(as defined in the Credit Agreement) (such obligations being herein referred to
as the "Other Indebtedness").
To induce said Lenders to amend and restate the Existing
Credit Agreement and to extend credit thereunder and to extend credit to the
Borrower which would constitute Other Indebtedness, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Subordinated Creditor has agreed that the Existing
Subordination Agreement shall be hereby amended and restated in its entirety.
Accordingly, the parties hereby agree that the Existing Subordination Agreement
shall be amended and restated to read as follows:
Section 1. Definitions. Terms defined in the Credit
Agreement are used herein as defined therein. In addition, as used herein:
"Junior Notes" shall mean (a) the Term Note dated September
30, 1990 payable by the Borrower to Carolyn C. Smith in the original
face amount of $6,700,000 and (b) the Term Note dated September 30,
1990 payable by the Borrower to Julian S. Smith in the original face
amount of $7,515,000 (heretofore assigned to Carolyn C. Smith).
"Obligors" shall mean the Borrower and all Subsidiaries of
the Borrower.
"Senior Obligations" shall mean the principal of and
interest (including Post-Petition Interest (as defined in Section
2.01(a) hereof)) on the Loans made by the Lenders to, and the Note(s)
held by each Lender of, the Borrower, all Reimbursement Obligations
and interest (including Post- Petition Interest (as so defined)
thereon and all other amounts from time to time owing to the Lenders
or the Agent by the Borrower under the Credit Agreement and under the
Notes and all Other Indebtedness and interest thereon.
"Subordinated Claims" shall mean all indebtedness,
liabilities, obligations and other claims, and all security
interests, mortgages and other encumbrances owing or granted to the
Subordinated Creditor by any Obligor, whenever arising, whether
direct or contingent, as primary obligor, guarantor or otherwise, and
howsoever evidenced, including, without limitation, in respect of the
Junior Notes.
Founders Subordination Agreement
- 3 -
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
Section 2. Subordination. The Subordinated Creditor agrees
that all payments of Subordinated Claims are subordinated and subject in right
of payment, to the extent and in the manner provided in this Section 2, to the
prior payment in full of the Senior Obligations and the termination or
expiration of the Commitments under the Credit Agreement, all Letter of Credit
Liabilities and the Interest Rate Protection Agreements constituting Other
Indebtedness.
2.01 Liquidation, Etc.
------------------
(a) Upon any payment or distribution of assets of
any Obligor of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding up or total or partial liquidation
or reorganization of any Obligor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all Senior
Obligations due or to become due shall first be paid in full in cash before any
payment is made on any Subordinated Claims, and all payments and distribution of
assets of any Obligor of any kind or character, whether in cash, property or
securities, by set-off or otherwise, to which the holders of the Subordinated
Claims would be entitled except for the provisions hereof, shall be paid by such
Obligor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other person making such payment or distribution, or by the holders of the
Subordinated Claims if received by them, directly to the holders of the Senior
Obligations (pro rata to each such holder on the basis of the respective unpaid
amounts of Senior Obligations held by such holder) or their representatives to
the extent necessary to pay all Senior Obligations in full in cash, after giving
effect to any concurrent prepayment or distribution to or for the benefit of the
holders of Senior Obligations, before any payment or distribution is made to the
holders of the Subordinated Claims. In furtherance of the foregoing, but not by
way of limitation thereof, in the event that any Obligor shall file or have
filed against it a petition under any chapter of the Bankruptcy Code or be
adjudicated a bankrupt thereunder, with the result that such Obligor is excused
from the obligation to pay all or any part of the interest otherwise payable in
respect of the Senior Obligations at the applicable rate set forth in the Credit
Agreement during the period subsequent to the commencement of any proceedings
under the Bankruptcy Code ("Post-Petition Interest"), each holder of any
Subordinated Claims hereby agrees that all or such part of such Post-Petition
Interest, as the case may be, shall be payable
Founders Subordination Agreement
- 4 -
out of, and to that extent diminish and be at the expense of, reorganization
dividends or other distributions in respect of such Subordinated Claims.
(b) In the event that any payment or distribution
not permitted by the terms of this Agreement of assets of any Obligor of any
kind or character, whether in cash, property or securities, shall be received by
the holders of any Subordinated Claims (whether arising out of the exercise by
any such holder of set-off, counterclaim or otherwise) before all Senior
Obligations are paid in full, or provision made for such payment in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of, and shall immediately be paid over or delivered to, the holders of
the Senior Obligations or their representatives, as their respective interests
may appear, for application to the payment of all Senior Obligations remaining
unpaid to the extent necessary to pay all Senior Obligations in full in
accordance with the terms thereof, after giving effect to any concurrent payment
or distribution to or for the holders of the Senior Obligations.
(c) In the event that any Obligor shall file or
have filed against it a petition under any chapter of the Bankruptcy Code, the
Agent may (but shall not be obligated to), and is hereby appointed the lawful
attorney of the Subordinated Creditor to, demand, sue for, collect, receive and
receipt for payments and distributions in respect of Subordinated Claims in such
proceeding which are required to be paid or delivered to the holders of Senior
Obligations as provided herein, and to file and prove all claims therefor and to
execute and deliver all documents in such proceeding in the name of the
Subordinated Creditors or otherwise in respect of such claims, all as the Agent
may determine to be necessary or appropriate to carry out the purposes of this
Agreement.
2.02 Default Under Credit Agreement.
(a) No payment on any Subordinated Claim shall be
made by any Obligor if, at the time of such payment or immediately after giving
effect thereto, there shall exist a Default under the Credit Agreement.
(b) If an Event of Default shall have occurred and
be continuing, the Agent may, by notice to the Subordinated Creditor, terminate
all guarantees, and all security interests, mortgages and other encumbrances,
included in the Subordinated Claims, whereupon, without any further action, such
guarantees, security interests and other encumbrances shall be automatically
terminated and the Subordinated Creditor's sole recourse in respect of the
Subordinated Claims shall be as unsecured
Founders Subordination Agreement
- 5 -
creditors of the primary obligors in respect thereof. The Agent agrees that any
termination statements under the Uniform Commercial Code signed by the
Subordinated Creditor and received by it hereunder shall not be filed by it
except to give effect to this Section 2.02(b) at such time, if any, as the Agent
shall exercise its rights under and in accordance with the preceding sentence.
(c) The Agent shall be under no obligation to
furnish to any holder of Subordinated Claims any notice of any Default.
2.03 Standstill. During any period in which a Default shall
have occurred and be continuing, no portion of the Subordinated Claims shall be
due, and the date that any such portion that would otherwise have been due
during such period shall be automatically extended until the date on which all
Defaults shall have been cured. Without limiting the foregoing, the Subordinated
Creditor shall not, whether or not a Default then exists, institute any legal
proceedings or take any non-judicial action to collect any of the Subordinated
Claims, including (without limitation), bringing a lawsuit, filing or joining in
a petition against any Obligor under the Bankruptcy Code or foreclosing or
otherwise realizing upon any collateral.
2.04 Term; Payments in Violation of this Agreement. The
Subordinated Creditor agrees that no payments or distributions will be received
by or on behalf of any holder of a Subordinated Claim in violation of the terms
of this Agreement. Any payment so made or received (excluding any such payment
received by the Subordinated Creditor more than six months before the
Subordinated Creditor receives notice of a Default) shall be held in trust by
the Subordinated Creditor for the benefit of the Lenders and shall be
immediately remitted to the Lenders as a payment or prepayment of the Senior
Obligations. Without limiting the generality of the foregoing, the term
"payment" shall include any proceeds of the liquidation or disposition of any
collateral.
2.05 Appointment as Attorney in Fact. The Subordinated
Creditor hereby authorizes and directs the Agent on behalf of the Subordinated
Creditor to take such action as may be necessary or appropriate to effectuate
the subordination provided for in this Agreement, including, without limitation,
executing termination statements under the Uniform Commercial Code to give
effect to Section 2.02(b) hereof.
2.06 Prepayments. No prepayments of Subordinated Claims
shall be made or accepted except to the extent permitted by Section 9.18 of the
Credit Agreement.
Founders Subordination Agreement
- 6 -
2.07 Modification; Amendment; Waiver. The Subordinated
Creditor hereby agrees that no document or instrument evidencing or representing
any Subordinated Claim shall in any way be modified or amended, and no waiver in
connection with any such document shall be given, without the prior written
consent of the Agent.
2.08 Shared Collateral. The Subordinated Creditor
acknowledges that the Obligors have granted and will grant to the Agent for the
benefit of the Lenders security interests in and mortgages on all of their
respective properties. Notwithstanding the time of granting of Liens, or the
time or filing or recording of any financing statements, mortgages, fixture
filings or assignments or other notices under the Uniform Commercial Code or any
other applicable law, the Subordinated Creditor hereby subordinates any Lien the
Subordinated Creditor may have on such properties to such security interests and
mortgages in favor of the Agent and hereby agrees that such security interests
and mortgages in favor of the Agent, now or hereafter created or existing, are
senior and prior to all Liens in favor of the Subordinated Creditor,
irrespective of the time or order of attachment or perfection, and irrespective
of whether such security interests and mortgages in favor of the Agent have been
filed, recorded or otherwise perfected. The Agent is not a fiduciary or agent
for the Subordinated Creditor and shall have no obligation whatsoever to the
Subordinated Creditor in respect of any collateral other than under Section
9-504(1)(c) of the Uniform Commercial Code, and the Subordinated Creditor hereby
agrees that the Agent may, but shall not be obligated to, take or refrain from
taking any action with respect thereto permitted by security agreements and
mortgages covering such collateral to which the Agent is a party.
2.09 Transfer of Subordinated Claims. The Subordinated
Creditor shall not assign or otherwise transfer any Subordinated Claim held by
the Subordinated Creditor other than by operation of law or to a family member
upon death.
Section 3. Representations and Warranties. The Subordinated
Creditor represents and warrants to the Lenders and the Agent that:
3.01 No Breach. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, any applicable law or regulation, or
any order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which the
Founders Subordination Agreement
- 7 -
Subordinated Creditor is a party or by which the Subordinated Creditor is bound
or to which the Subordinated Creditor is subject, or constitute a default under
any such agreement or instrument.
3.02 Action. This Agreement has been duly and validly
executed and delivered by the Subordinated Creditor and the legal, valid and
binding obligation of the Subordinated Creditor, enforceable in accordance with
its terms.
3.03 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by the
Subordinated Creditor of this Agreement or for the validity or enforceability
hereof.
3.04 Ownership of Subordinated Claims. The Subordinated
Creditor has not transferred any Subordinated Claims owing to the Subordinated
Creditor, except for the pledge and security interest in the Junior Notes
provided for in the Security Agreement dated as of March 27, 1995 between the
Subordinated Creditor and The Chase Manhattan Bank (National Association), as
agent for certain lenders, which pledge and security interest are subject to the
provisions of this Agreement.
Section 4. Obligations Unconditional. The obligations of the
Subordinated Creditor under this Agreement are absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of the Credit Agreement, the Notes or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Senior Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 4 that the
obligations of the Subordinated Creditor hereunder shall be absolute and
unconditional under any and all circumstances. Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not affect the liability of the Subordinated Creditor hereunder
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the
Subordinated Creditor, the time for any performance of or compliance
with any of the Senior Obligations shall be
Founders Subordination Agreement
- 8 -
extended, such performance or compliance shall be waived or the
amount of the Senior Obligations shall be increased;
(b) any of the acts mentioned in any of the provisions of
the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein shall be done or omitted;
(c) the maturity of any of the Senior Obligations shall be
accelerated, or any of the Senior Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Notes or any other agreement or instrument referred
to herein or therein shall be waived or any other guarantee of any of
the Senior Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(d) any lien or security interest granted to, or in favor
of, the Agent or any Lender or Lenders as security for any of the
Senior Obligations shall fail to be perfected;
(e) any of the Senior Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of
any creditor of any Obligor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Obligor);
(f) the Borrower shall be insolvent on the date hereof or
shall become insolvent on the date that any Loan is made; or
(g) the execution and delivery of a Tranche C Term Loan
Activation Notice providing for Tranche C Term Loan Commitments in
any amount.
The Subordinated Creditors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement (including,
without limitation, marshalling) that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Obligor under the Credit Agreement or the
Notes or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any of
the Senior Obligations.
Section 5. Consent and Waiver. The Subordinated Creditor
hereby consents to the execution, delivery and performance by the Obligors of
the Credit Agreement (including, without limitation Section 9.25 thereof), the
Notes and the other
Founders Subordination Agreement
- 9 -
agreements and instruments referred to therein, and the borrowings by the
Borrower under the Credit Agreement, and hereby agree that such execution,
delivery, performance and borrowings shall not be deemed to breach, conflict
with or otherwise contravene, or constitute a default under, any agreement or
instrument relating to any Subordinated Claim. The Subordinated Creditor hereby
further waives any right the Subordinated Creditor may have to require that any
License Subsidiary Guarantee or otherwise be or become obligated or liable for
any Subordinated Claim and, without limiting the generality of the foregoing,
hereby releases any Lien they may have on or after the date hereof on any
Broadcast License held by any License Subsidiary or on any rights that any
License Subsidiary may have under any management agreement.
Section 6. Further Assurances. The Subordinated Creditor
agrees that, from time to time upon the written request of the Agent, the
Subordinated Creditor will execute and deliver such further documents and do
such other acts and things as the Agent may reasonably request in order fully to
effect the purposes of this Agreement.
Section 7. Miscellaneous.
--------------
7.01 No Waiver. No failure on the part of the Agent or any
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
7.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its (or her, as the
case may be) name on the signature pages hereof (or, in the case of the Agent,
on the signature pages of the Credit Agreement) or, as to any party, at such
other address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
Founders Subordination Agreement
- 10 -
7.03 Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by the
Subordinated Creditor and the Agent (with the consent of the Lenders as
specified in Section 11.09 of the Credit Agreement). Any such amendment or
waiver shall be binding upon the Agent and each Lender, each holder of any of
the Secured Obligations and the Subordinated Creditor.
7.04 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective heirs, executors,
administrators, successors and assigns of the Subordinated Creditor, the Agent,
the Lenders and each holder of any of the Secured Obligations (provided,
however, that the Subordinated Creditor shall not assign or transfer her rights
hereunder without the prior written consent of the Agent).
7.05 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
7.06 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
7.07 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York. The Subordinated Creditor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Subordinated Creditor irrevocably
waives, to the fullest extent permitted by applicable law, any objection that
the Subordinated Creditor may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
7.08 Waiver of Jury Trial. EACH OF THE SUBORDINATED
CREDITOR, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Founders Subordination Agreement
- 11 -
7.09 Agents and Attorneys-in-Fact. The Agent may employ
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
7.10 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
Founders Subordination Agreement
- 12 -
IN WITNESS WHEREOF, the parties hereto have caused this
Subordination Agreement to be duly executed as of the day and year first above
written.
---------------------------------
CAROLYN C. SMITH
Address for Notices:
1343 Ivy Hill Road
Baltimore, Maryland 21030
With a copy to:
Thomas & Libowitz, P.A.
100 Light Street, Suite 1100
Baltimore, MD 21202
Telephone No.: (410) 752-2468
Telecopy No.: (410) 752-2046
Attention: Steven A. Thomas
Founders Subordination Agreement
- 13 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By
-----------------------------
Name:
Title:
Acknowledged and Agreed:
SINCLAIR BROADCAST GROUP, INC.
By
---------------------------------
Name:
Title:
Founders Subordination Agreement
- 14 -
Acknowledged and Agreed:
SUBSIDIARY GUARANTORS
- ---------------------
CHESAPEAKE TELEVISION, INC.
KABB, INC.
KDNL, INC.
KDSM, INC.
KSMO, INC.
SCI - INDIANA, INC.
SCI - SACRAMENTO, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC.
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF WILKES-BARRE,
INC.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC.
WDBB, INC.
WLFL, INC.
WLOS, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
SUPERIOR COMMUNICATIONS OF
OKLAHOMA, INC.
By
------------------------------------
Name:
Title:
Founders Subordination Agreement
- 15 -
Acknowledged and Agreed:
SUBSIDIARY GUARANTORS
- ---------------------
CHESAPEAKE TELEVISION
LICENSEE, INC.
FSF TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KDSM LICENSEE, INC.
KSMO LICENSEE, INC.
SCI - INDIANA LICENSEE, INC.
SCI - SACRAMENTO LICENSEE, INC.
SINCLAIR RADIO OF ALBUQUERQUE
LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO
LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE
LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES
LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS
LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE
LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS
LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS
LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC.
SUPERIOR COMMUNICATIONS GROUP, INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
WCGV LICENSEE, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WSMH LICENSEE, INC.
WTTO LICENSEE, INC.
WYZZ LICENSEE, INC.
By
----------------------------------
Name:
Title:
Founders Subordination Agreement
- 16 -
STATE OF MARYLAND )
) ss:
COUNTY OF __________ )
On this __ day of _________, 1996, before me, the
undersigned officer, personally appeared Carolyn C. Smith, known to me (or
satisfactorily proven) to be the person whose name Carolyn C. Smith subscribed
to the within instrument and acknowledged that he executed the same for the
purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
-----------------------------
NOTARY PUBLIC in and for the
State of Maryland.
My Commission expires:
Founders Subordination Agreement
EXHIBIT G
[Form of Asset Use and Operating Agreement]
ASSET USE AND OPERATING AGREEMENT
ASSET USE AND OPERATING AGREEMENT dated as of _______, 199_
between_________________, a ____________ corporation (the "License Holder"), and
_________________, a ______________ corporation (the "Operator").
WHEREAS, the License Holder holds the licenses (the
"Licenses") issued by the Federal Communications Commission (the "FCC") to
operate the [television/radio] station (the "Station") identified on Annex 1
hereto;
WHEREAS, the Operator, the owner of all of the capital stock
of the License Holder, owns all of the assets (not including Licenses) and
facilities (the "Facilities") used or useful in the operation of the Station;
WHEREAS, Sinclair Broadcast Group, Inc. (the "Borrower"),
the Operator, the License Holder and certain other subsidiary guarantors,
certain lenders (the "Lenders") and The Chase Manhattan Bank (National
Association), as agent for the Lenders (in such capacity, the "Agent"), entered
into a Second Amended and Restated Credit Agreement dated as of May 31, 1996
pursuant to which the Borrower borrowed money from the Lenders to finance, inter
alia, the acquisition of the Facilities and the Licenses;
WHEREAS, the License Holder and the Operator wish to enter
into this Agreement to ensure that the Operator manages Station operations in
accordance with the Communications Act of 1934, as amended, and the rules and
regulations promulgated by the FCC thereunder;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
Section 1. The Operator's Duties. Subject to the provisions
of Section 2 hereof, the Operator shall manage and direct the day-to-day
operations of the Station, including, but not limited to, providing staffing,
determining the Station's programming schedule, selling advertising time,
operating and maintaining the Facilities, and assuring compliance with FCC
requirements. The Operator shall maintain such facilities and equipment and hire
and supervise such employees as are necessary to the fulfillment of its
responsibilities hereunder. It is
Asset Use and Operating Agreement
- 2 -
understood that all expenses and capital costs incurred in operating the Station
shall be paid by the Operator and all advertising and other receipts collected
in operating the Station shall be retained by the Operator. The Operator shall
not be entitled to any compensation for services rendered hereunder.
Section 2. Control By the License Holder. The License Holder
shall have the right at all times and may exercise ultimate control over the
programming, personnel, operations and policies of the Station, and the Operator
shall operate the Station in compliance therewith. The Operator shall provide
the License Holder with such books of account, records and reports, including
quarterly programming schedules and reports, as the License Holder may
reasonably request from time to time. Without limiting the foregoing and to
assure compliance with FCC policies and rules, the License Holder shall have the
right throughout the term of this Agreement (a) to require the Operator to
delete any program if its transmission would be contrary to the public interest,
(b) to require the Operator to transmit any program if its transmission would
serve the public interest, and (c) to cause the Operator to relieve any person
of his or her duties at the Station if his or her conduct is inconsistent with
the policies or rules of the License Holder or the FCC or is otherwise
inconsistent with the public interest. This paragraph shall be construed so as
to vest in the License Holder such powers which may be necessary for discharge
of its responsibilities as a licensee under the Communications Act of 1934, as
amended, and the policies and the rules promulgated thereunder by the FCC.
Section 3. Compliance with Law. The Operator shall at all
times operate the Station in compliance with the Communications Act of 1934, as
amended, and all rules, regulations and policies of the FCC and any other
governmental agency with authority over the Station, as such laws, rules,
regulations and policies are in effect from time to time.
Section 4. Modification of Facilities. The Operator may, at
its discretion, modify the Station's Facilities from time to time, at its
expense, subject to the License Holder's approval of the modifications. If prior
FCC approval of such modifications is required, the Operator shall prepare an
appropriate application for the License Holder to sign and file with the FCC,
and no such change shall be implemented prior to the grant of FCC consent. Any
application for a license to cover any construction permit shall similarly be
prepared by the Operator for signature and filing by the License Holder.
Section 5. FCC Filings. The Operator shall cooperate with
the License Holder in furnishing any information which may
Asset Use and Operating Agreement
- 3 -
be requested by the FCC in connection with the operation of the Station,
including, but not limited to, any technical and/or engineering information. The
Operator shall prepare, for the License Holder's signature and filing with the
FCC, an appropriate license renewal application and such other reports,
documents, and filings as may be necessary from time to time to keep in force
and effect an FCC authorization for operating the Station. The License Holder
shall cooperate with the Operator in signing and filing such license renewal
applications and other reports, documents, and filings as the Operator shall
from time to time prepare and submit to the License Holder.
Section 6. Notices. All notices hereunder shall be given in
writing by first class United States mail, postage prepaid, addressed as
follows, or to such other address as either party may specify from time to time:
If to the License Holder:
-----------------------
-----------------------
-----------------------
If to the Operator:
-----------------------
-----------------------
-----------------------
Section 7. Term. The term of this Agreement shall begin on
the date hereof and shall terminate upon the occurrence of any of the following
events (unless earlier terminated pursuant to the provisions of Section 8
hereof):
(a) revocation or expiration without renewal of the Licenses
held by the License Holder to operate the Station; or
(b) mutual agreement of the parties to terminate this
Agreement.
Section 8. Termination. The License Holder shall have the
right to terminate this Agreement by written notice to the Operator at any time
during the term hereof upon the occurrence of any of the following events:
(a) any material failure by the Operator to perform any of
its obligations under this Agreement;
Asset Use and Operating Agreement
- 4 -
(b) the insolvency of the Operator, appointment of a
receiver of the property of the Operator, or any assignment for the
benefit of creditors of the Operator;
(c) the filing of a voluntary or involuntary petition by or
against the Operator under Bankruptcy laws of the United States; or
(d) the foreclosure (other than by the Agent) of any lien or
security interest in, or the placement or issuance of any levy, writ
of attachment, writ of garnishment, writ of execution or similar
process against, the Operator or any property of the Operator or
securities representing an ownership interest in the Operator.
Section 9. Assignment. The Operator shall not assign this
Agreement or any of the Operator's rights or obligations under this Agreement or
sell or transfer the Facilities without the prior written consent of the License
Holder, and any attempted assignment, sale or transfer by the Operator not in
compliance with this provision shall, at the License Holder's option, be null
and void; provided, however, that the Operator may replace portions of the
Facilities from time to time provided that such replacements do not impair
Station operations. Nothing herein shall be interpreted to prevent the Operator
from granting a mortgage on or other security interest in any of the Facilities.
This Agreement shall bind and inure to the benefit of the permitted successors
and assigns of the parties. The parties agree that, in the event of assignment,
transfer of control or sale of the Station to any third party, the Licenses and
the Facilities shall, to the extent required by law (including the regulations
of the FCC), be assigned or control thereof transferred to such third party
together, and not separately, after all requisite FCC consents therefor have
been obtained.
Section 10. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York.
Section 11. Construction. It is the intent of the parties
that operation of the Station under this Agreement comply with the rules and
regulations of the FCC, and all provisions of this Agreement shall be so
construed.
Section 12. Severability. If any provision of this Agreement
shall be declared void or invalid by any governmental authority with
jurisdiction thereof, then the remainder of this Agreement shall remain in full
force and effect without the
Asset Use and Operating Agreement
- 5 -
offending provision, provided that such remainder substantially reflects the
original agreement of the parties.
Section 13. Amendments. This Agreement represents the entire
understanding of the parties hereto with respect to the subject matter hereof
and may be amended only by a writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
[NAME OF LICENSE HOLDER] [NAME OF OPERATOR]
By_________________________ By_______________________
Title: Title:
Asset Use and Operating Agreement
Exhibit H
[Form of Consent and Agreement]
CONSENT AND AGREEMENT (this "Consent and Agreement") dated as
of ___________, 1996 by [NAME OF CONSENTING PARTY], a corporation duly organized
and validly existing under the laws of the State of __________ (the "Consenting
Party").
Sinclair Broadcast Group, Inc., a Maryland corporation (the
"Company1"), the subsidiaries of the Company party as Subsidiary Guarantors to
the Credit Agreement referred to below (collectively the "Subsidiary
Guarantors"), including without limitation _____________, a ____________
corporation (the "Contract Counterparty"), the financial institutions named
therein (the "Lenders") and The Chase Manhattan Bank (National Association) as
agent for the Lenders (in such capacity, together with its successors in such
capacity, the "Agent") are parties to a Credit Agreement dated as of
____________, 1996 (as modified and supplemented and in effect from time to
time, the "Credit Agreement"), providing, subject to the terms and conditions
thereof, for loans to be made by the Lenders in an aggregate principal amount
not exceeding $_______________.
The Company, the Subsidiary Guarantors and the Agent are
parties to a Security Agreement dated as of __________, 1996 (as modified and
supplemented and in effect from time to time, the "Security Agreement") pursuant
to which the Company and each Subsidiary Guarantor, including without
limitation, the Contract Counterparty, agreed to pledge and grant a security
interest in the Assigned Agreements (as defined below) as security for the
Secured Obligations (as defined in the Security Agreement). Accordingly, the
parties hereto agree as follows:
Section 1. Definitions. Each capitalized term used herein and
not otherwise defined herein shall have the meaning assigned to such term in the
Credit Agreement. As used in this Consent and Agreement, the following term
shall have the following meaning:
"Assigned Agreements" shall mean the agreements listed in
Annex 1 hereto.
"Contract Default" shall mean a default by the Contract
Counterparty or any other Person in the performance of any
- ------------
1 Will be defined as the "Contract Counterparty" in the form of this
Consent and Agreement relating to Assigned Agreements to which Sinclair
Broadcast Group, Inc. is a party.
Consent and Agreement
- 2 -
of its obligations under any Assigned Agreement, or the occurrence or
non-occurrence of any event or condition under the Assigned Agreements
which would immediately or with the passage of time or the giving of
notice, or both (including, without limitation, the failure to give a
notice of extension), enable the Consenting Party to exercise any right
or remedy under the Assigned Agreements or result in the termination or
any of the Contract Counterparty's rights under any Assigned Agreement.
"Monetary Default" shall mean, with respect to any Station,
the failure by the Contract Counterparty to pay when due, after the
lapse of any applicable grace period, any amount owing by it under an
Assigned Agreement relating to such Station or to cure after the lapse
of any applicable grace period any other Contract Default that can be
cured solely by the payment of money.
"Station" shall mean a radio or television broadcasting
station that is the subject of an Assigned Agreement.
Section 2. Representations and Warranties. The Consenting
Party hereby represents and warrants that this Consent and Agreement has been
duly executed and delivered by the Consenting Party and constitutes the legal,
valid and binding obligation of the Consenting Party enforceable against the
Consenting Party in accordance with its terms, except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency, moratorium and other
similar laws affecting the enforcement of creditors' rights generally and (ii)
the application of equitable principles (whether considered in a court of law or
a proceeding in equity).
Section 3. Consent.
-------
Section 3.01. Consent to Assignments, etc. The Consenting
Party hereby:
(a) consents to the assignment by the Contract Counterparty to
the Agent pursuant to the Security Agreement of all of the Contract
Counterparty's right, title and interest in, to and under the Assigned
Agreements as collateral security for the Secured Obligations;
(b) acknowledges the right of the Agent in the exercise of its
rights and remedies under the Security Agreement and at the times
provided for therein to make all requests and demands, give all
notices, take all actions and exercise any and all rights and remedies
of the Contract Counterparty (whether or not the Contract Counterparty
has
Consent and Agreement
- 3 -
then been dissolved, liquidated or wound-up) under each Assigned
Agreement, and agrees that in such event, unless and until such
Assigned Agreement is terminated as permitted by Section 3.01(f)
hereof, the Consenting Party shall continue to perform its obligations
under, and in respect of, such Assigned Agreement and the Agent or its
designee shall have the full right and power to enforce directly
against the Consenting Party all such obligations of the Consenting
Party under such Assigned Agreement;
(c) agrees that if (i) the Agent shall notify the Consenting
Party that the Agent has elected to exercise its rights under the
Security Agreement to have itself or its designee substituted for the
Contract Counterparty with respect to the Contract Counterparty's
rights under an Assigned Agreement relating to any Station (whether or
not the Contract Counterparty has then been dissolved, liquidated or
wound-up) and (ii) no Monetary Default shall have occurred and be
continuing with respect to such Station, then the Agent or its
designee, as the case may be, shall be substituted for, and shall
assume and be directly liable for the obligations of, the Contract
Counterparty under such Assigned Agreement with respect to such
Station, and agrees that in such event the Consenting Party shall
continue to perform its obligations under, and in respect of, such
Assigned Agreement with respect to such Station and the Agent or its
designee shall have the full right and power to enforce directly
against the Consenting Party all obligations of the Consenting Party
under such Assigned Agreement with respect to such Station;
(d) agrees that if (i) the Agent shall sell or assign any
portion of an Assigned Agreement relating to any Station pursuant to
the Security Agreement (whether through judicial foreclosure,
deed-in-lieu of foreclosure, or otherwise) and (ii) no Monetary Default
shall have occurred and be continuing with respect to such Station, the
purchaser or assignee of such portion of such Assigned Agreement may be
substituted for the Contract Counterparty with respect to such portion
of such Assigned Agreement (whether or not the Contract Counterparty
has then been dissolved, liquidated or wound-up), and assume and be
directly liable for the obligations of, the Contract Counterparty under
such Assigned Agreement, and agrees that in such event the Consenting
Party will continue to perform its obligations under, and in respect
of, such Assigned Agreement.
(e) agrees that neither the Agent, nor its designee, shall be
subject to any duty or obligation under the Assigned Agreements, nor
shall the grant of a security
Consent and Agreement
- 4 -
interest in the Assigned Agreements by the Company and the Subsidiary
Guarantors to the Agent pursuant to the Security Agreement, give rise
to any duty or obligation on the part of the Agent to the Consenting
Party unless and until the Agent shall have notified the Consenting
Party in writing that the Agent has elected to exercise its rights
pursuant to the Security Agreement to have itself or its designee
substituted for the Contract Counterparty under an Assigned Agreement
relating to a Station, whereupon the sole obligation of the Agent or
such designee, as the case may be, with respect to claims of the
Consenting Party against the Contract Counterparty arising from the
Contract Counterparty's failure to perform during any period prior to
the Agent's or such designee's substitution shall be limited to the
obligation to cure any Monetary Default relating to such Station,
provided that neither the Agent nor its designee shall become liable to
the Consenting Party solely as a result of foreclosing upon and taking
temporary title to all or any portion of any Assigned Agreement;
(f) agrees that, in the event of a Contract Default, the
Consenting Party will continue to perform its obligations under, and in
respect of, the Assigned Agreements and will not exercise any right or
remedy provided for in the Assigned Agreements, until it first gives
prompt written notice of such Contract Default to the Agent or its
designee and affords the Agent or its designee a period of at least
ninety (90) days (or, unless such Contract Default is a Monetary
Default or such Contract Default has a materially adverse effect on the
Consenting Party, such longer period as the Agent reasonably requests
so long as the Agent or its designee has commenced and is diligently
pursuing appropriate action to cure such Contract Default) from receipt
of such notice to cure such Contract Default.
(g) agrees that the Agent or its designee shall have the
right, but not the obligation, to exercise the rights to cure set forth
in Section 3.01(f) above; and
(h) agrees that, in the event that any Assigned Agreement (i)
is terminated in whole or in part by reason of the bankruptcy of the
Contract Counterparty or the Consenting Party or by reason of the
rejection by the Contract Counterparty, the Consenting Party or any
trustee for the Contract Counterparty or the Consenting Party of such
Assigned Agreement in connection with any bankruptcy case, or pursuant
to any order of the FCC, or (ii) becomes or is determined to be void or
unenforceable in whole or in part, the Consenting Party will, upon
notice from the Agent,
Consent and Agreement
- 5 -
enter into a new agreement with the Agent or its designee, which shall
be for the remaining term under the original Assigned Agreement (or, if
applicable, the affected portion thereof) and shall contain the same
terms and conditions as such original Assigned Agreement (excluding any
requirement to pay consideration that has theretofore been paid) with
such modifications and additional terms and conditions as may be
reasonably necessary to reflect materially changed circumstances
resulting from, arising out of or relating to the rejection or
termination of the original Assigned Agreement and the substitution of
the new contracting party (whereupon references in this Consent and
Agreement to such "Assigned Agreement" shall be deemed to refer to such
new Assigned Agreement).
Section 3.02. Payment of Assigned Sums. After receipt of
notice from the Agent instructing it to do so, the Consenting Party shall pay
all monies that are due and payable to the Contract Counterparty under the
Assigned Agreements directly to the Agent at account number ____________
maintained by the Agent with Chase at the Principal Office in immediately
available funds not later than _____ on the date such monies are due. The
Contract Counterparty hereby releases and agrees to hold the Consenting Party
harmless from all liability for making payments to the Agent in accordance with
the requirements of this Section 3.02.
Section 3.03. Reinstatement. This Consent and Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any amount received by the Agent in respect of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Agent, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, as
though such payments had not been made.
Section 3.04. Modifications to Basic Documents. The Consenting
Party agrees that no modification or supplement to any of the Basic Documents
(including, without limitation, any modification or supplement that increases
the amount or extends the maturity of any credit extended under the Credit
Agreement) shall affect its obligations hereunder.
Section 3.05. No Subrogation. The Consenting Party agrees that
it shall in no event be, and hereby waives any right that it might otherwise
have to be, subrogated to the rights of the Lenders and the Agent with respect
to the Secured Obligations.
Section 3.06. Waiver of Bankruptcy Code Protection. The
Consenting Party intends that its obligations under the
Consent and Agreement
- 6 -
Assigned Agreements not be a contract to which Section 365(c)(1) or Section
365(c)(2) or Section 365(e)(2) of the Bankruptcy Code applies in a cause
involving the Contract Counterparty as a debtor under the Bankruptcy Code and,
to the extent it may be determined that such Sections are applicable (except as
provided in the following sentence), the Consenting Party (a) waives, to the
fullest extent permitted by law, its rights under, and the benefits of, such
Sections with respect to such case, (b) consents to the assumption of the
Assigned Agreements by the trustee in bankruptcy in such case and (c) agrees to
reconfirm the waiver contained in clause (a) above and the consent contained in
clause (b) above to the trustee in bankruptcy in any such case at any time
requested by the Agent. The Consenting Party shall not be bound by clause (a),
(b) or (c) of the preceding sentence with respect to any Assigned Contract (or
portion thereof) under which a Contract Default exists unless, as provided by
the Bankruptcy Code, the trustee in bankruptcy (i) cures, or provides adequate
assurance that such trustee will promptly cure, such Contract Default, (ii)
compensates, or provides adequate assurance that the trustee will promptly
compensate, the Consenting Party for any actual pecuniary loss to the Consenting
Party resulting from such Contract Default and (iii) provides adequate assurance
of future performance under such Assigned Agreement (or portion thereof).
Section 3.07. Survival of Contract Counterparty's Obligations.
Nothing contained herein shall be deemed to relieve the Contract Counterparty of
(i) any liability to the Consenting Party for any Contract Default by the
Contract Counterparty that is not cured by the Agent or its designee or by any
purchaser or assignee of any portion of an Assigned Agreement or (ii) any
liability to the Consenting Party for damages arising out of any Contract
Default by the Contract Counterparty to the extent that such damages relate to a
period prior to the cure of such Contract Default by the Agent or its designee
or by any purchaser or assignee of any portion of an Assigned Agreement.
Section 3.08. Obligations and Rights under Assigned Agreements
of Substitute for Contract Counterparty. Nothing contained herein shall be
deemed to limit the rights or remedies of the Consenting Party under any
Assigned Agreement in respect of any Contract Default by the Agent or its
designee or by any purchaser or assignee of any portion of an Assigned Agreement
after the Agent, such designee or such purchaser, as the case may be (an
"Assignee"), is substituted for the Contract Counterparty as provided in Section
3.01 hereof in respect of the portion of such Assigned Agreement under which
such Contract Default occurred. No Assignee shall, by virtue of any such
substitution in respect of a portion of an Assigned Agreement, acquire greater
rights under such Assigned Agreement with respect to such portion
Consent and Agreement
- 7 -
than a permitted assignee of the Contract Counterparty would acquire under such
Assigned Agreement with respect to such portion.
[Section 3.09. Subordination. The Agent agrees that, as
between the Agent and the Cure Right Agreement Agent (as defined below), the
rights and remedies of the Agent under this Agreement shall be subject and
subordinate to the rights and remedies of The Chase Manhattan Bank (National
Association), as agent (in such capacity, together with its successors in such
capacity, the "Cure Right Agreement Agent") for the lenders to [Glencairn/the
River City Sellers], under the __________________ Agreement dated as of
____________ (the "Cure Right Agreement") between the Cure Right Agreement Agent
and the Consenting Party for so long as the Cure Right Agreement shall be in
effect. Without limiting the generality of the foregoing, the Agent shall not
exercise any right or remedy hereunder (other than the rights to cure set forth
in Section 3.01(f) hereof, which rights shall be subject and subordinate to the
rights and remedies of the Cure Right Agreement Agent as aforesaid) without the
prior written consent of the Cure Right Agreement Agent for so long as the Cure
Right Agreement shall be in effect.]2
Section 4. Miscellaneous.
-------------
Section 4.01. _____ Termination. Subject to Section 3.03
hereof, when all Secured Obligations shall have been paid in full and the
Commitments of the Lenders (and the Letters of Credit) under the Credit
Agreement shall have expired or been terminated and the Interest Rate Protection
Agreements shall have expired or been terminated, this Consent and Agreement
shall terminate. The Agent shall notify the Consenting Party when such
termination has occurred. In addition, subject to Section 3.01(h) hereof, this
Agreement shall terminate with respect to any Assigned Agreement that has
terminated in accordance with its terms and as permitted by Section 3.01(f)
hereof and with respect to any portion of an Assigned Agreement that has been
fully and finally performed, including, without limitation, any option under any
Assigned Agreement that has been exercised and for which the closing has
occurred.
Section 4.02. Notices. All notices and other communications
hereunder shall be in writing, shall be sent by first class mail, by personal
delivery, by a nationally recognized courier service, or by telecopy and shall
be directed
- -----------------------
2 To be inserted if the Consenting Party is Glencairn (or any of its
Subsidiaries) or River City (or any of its Subsidiaries).
Consent and Agreement
- 8 -
to the addresses and telephone numbers listed on the signature page hereto or to
such other address or addressee as a party may designate by notice given
pursuant hereto.
Section 4.03. Separate Counterparts; Amendments, Waiver. This
Consent and Agreement may be executed in separate counterparts, each of which
when so executed and delivered shall be an original, and all of which taken
together shall constitute one and the same instrument. Neither this Consent and
Agreement nor any of the terms hereof may be terminated, amended, supplemented,
waived or modified except by an instrument in writing signed by the Agent and by
any other party against whom any such amendment, supplement, waiver or
modification is to be enforced. Notwithstanding the foregoing sentence, the
Agent may terminate this Consent and Agreement at any time by providing a notice
to the Consenting Party in accordance with Section 4.02.
Section 4.04. Severability of Provisions. Any provision of
this Consent and Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 4.05. Successors and Assigns. This Consent and
Agreement shall be binding upon each of the Consenting Party and the Contract
Counterparty, and on the permitted successors and assigns of each of them, and
shall inure to the benefit of the Agent (for its own benefit and for the benefit
of the financial institutions and other lenders from time to time party to the
Credit Agreement or to any Successor Credit Agreement (as defined below) and its
successors and permitted assigns; provided that (i) the Consenting Party shall
not transfer or assign all or any portion of its obligations under this Consent
and Agreement or the Assigned Agreements without the prior written consent of
the Agent and (ii) the Agent shall not transfer or assign all or any portion of
its rights or obligations hereunder except to a successor agent for the Lenders
under the Credit Agreement or to an agent for the financial institutions and
other lenders from time to time party to any Successor Credit Agreement. For
purposes of this Section 4.05, "Successor Credit Agreement" shall mean any
credit or loan agreement providing for loans to be made by a syndicate of
lenders that have appointed a commercial bank to act as their agent thereunder,
where all or a portion of the proceeds of such loans are used to refinance or
refund the indebtedness of the Company under the Credit Agreement. From and
after the date any Successor Credit Agreement is entered into and the proceeds
of any borrowing thereunder are used to pay all
Consent and Agreement
- 9 -
obligations of the Company under the predecessor Credit Agreement then
outstanding (and the commitments of the lenders thereunder to provide further
credit shall have expired or been terminated and either any letters of credit
issued thereunder shall have expired or been terminated or the Company's
obligations with respect to any such letters of credit shall have been released
thereunder and reinstated under such Successor Credit Agreement), such Successor
Credit Agreement shall be deemed to be the Credit Agreement for all purposes
hereof.
Section 4.06. Headings Descriptive. The headings of the
several sections of this Consent and Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provisions of
this Consent and Agreement.
Section 4.07. Further Assurances. Upon the request of the
Contract Counterparty or the Agent, in connection with the provisions of and the
transactions contemplated by the Assigned Agreements, the Consenting Party shall
execute and deliver such further instruments and agreements relating to such
provisions and transactions as may reasonably be requested by the Contract
Counterparty to further document and carry out the intent and purpose of such
provisions and transactions.
Section 4.08. GOVERNING LAW, SUBMISSION TO JURISDICTION,
WAIVER OF JURY TRIAL.
(a) This Consent and Agreement shall be governed by, and
construed in accordance with, the law of the State of New York. Each of the
parties hereto hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
state court sitting in New York County for the purposes of all legal proceedings
arising out of or relating to this Consent and Agreement or the transactions
contemplated hereby. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONSENT AND AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.09. Waiver. No failure on the part of the Agent to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this
Consent and Agreement
- 10 -
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
Consent and Agreement
- 11 -
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement and Consent to be executed by its duly authorized officer as of the
date first above written.
[NAME OF CONSENTING PARTY]
By_________________________
Title:
Address for Notices:
Attention:
Telecopier No.:
Telephone No.:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By_________________________
Title:
Address for Notices:
Attention:
Telecopier No.:
Telephone No.:
Consent and Agreement
- 12 -
SINCLAIR BROADCAST GROUP, INC.
By_________________________
Title:
Address for Notices:
Attention:
Telecopier No.:
Telephone No.:
Consent and Agreement
- 13 -
[ACKNOWLEDGED:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Cure Right Agreement Agent
By_________________________
Title:]
Consent and Agreement
EXHIBIT I
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit
Agreement dated as of May 31, 1996 (as modified and supplemented and in effect
from time to time, the "Credit Agreement"), between Sinclair Broadcast Group,
Inc., a Maryland corporation (the "Borrower"), the Subsidiary Guarantors party
thereto, the lenders named therein, and The Chase Manhattan Bank (National
Association), as agent for such lenders. Terms defined in the Credit Agreement
are used herein as defined therein.
____________________ (the "Assignor") and
____________________ (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date as set forth in Schedule 1 hereto (the "Effective Date"), an
interest (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit facilities
contained in the Credit Agreement as are set forth on Schedule 1 (individually,
an "Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount and percentage for each Assigned Facility as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, any other
Basic Document or any other instrument or document furnished pursuant thereto,
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any other Basic Document or any other
instrument or document furnished pursuant thereto, other than that it has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligation or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Basic Document or any other instrument or
document furnished pursuant hereto or thereto; and (iii) attaches the Note(s)
held by it evidencing the Assigned Facilities and requests that the Agent
exchange such Note(s) for a new Note or
Assignment and Acceptance
- 2 -
Notes payable to the Assignor (if the Assignor has retained any interest in the
Assigned Facility) and a new Note or Notes payable to the Assignee in the
respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
3. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (ii) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 8.02 thereof, the financial
statements delivered pursuant to Section 9.01 thereof, if any, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Assignor, the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Basic Documents or any
other instrument or document furnished pursuant hereto or thereto; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other Basic
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof, together with such
powers as are incidental thereto; and (v) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Agent for acceptance by the Agent
pursuant to Section 12.06(b) of the Credit Agreement and, if the Loans being
assigned hereby are Registered Loans, recording by the Agent pursuant to Section
12.06(g) of the Credit Agreement, effective as of the Effective Date (which date
shall not, unless otherwise agreed to by the Agent, be earlier than five
Business Days after the date of such acceptance by the Agent and, if the Loans
being assigned hereby are Registered Loans, shall in no event be earlier than
the date the information contained herein is recorded in the Register pursuant
to Section 12.06(g) of the Credit Agreement).
5. Upon such acceptance and (if applicable) recording, from
and after the Effective Date, the Agent shall make all payments in respect of
the Assigned Interest (including payments
Assignment and Acceptance
- 3 -
of principal, interest, fees and other amounts) to the Assignee which accrue
subsequent to the Effective Date.
6. From and after the Effective Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Basic Documents and shall be bound by the
provisions thereof and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement except as provided in Section 12.07 of
the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the law of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Assignment and
Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
Assignment and Acceptance
Schedule 1 to
Assignment and Acceptance
relating to the Second Amended and Restated
Credit Agreement dated as of May 31, 1996,
between Sinclair Broadcast Group, Inc.,
the Subsidiary Guarantors party thereto
the lenders named therein and
The Chase Manhattan Bank (National Association),
as agent for the Lenders
(in such capacity, the Agent")
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Percentage
Facility Assigned Amount Assigned Assigned
----------------- --------------- --------
[ASSIGNEE] [ASSIGNOR]
By:___________________________ By:__________________________
Title: Title:
Accepted:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Agent
By:__________________________
Title:
[Consented to:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Issuing Bank
By:__________________________
Title:]
Assignment and Acceptance